UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 

Faculty  Library 


REPORTS   OF  OASES 


ARGUED  AND  DETERMINED 


SUPREME    COURT 


STATE  OF  NEW  YOEK. 


BT  ABRAHAM  LANSING, 

COTTN8ELOK-AT-LAW. 


VOL.  VI. 


NEW    YORK: 
BANKS  &  BROTHERS,  LAW  PUBLISHERS, 

No.  144  NASSAU  STREET. 

ALBANY:    476    BROADWAY. 

18T3. 


y 


V'  (Q 


Entered  according  to  act  of  Congress,  in  the  year  one  thousand  eight  hundred  and 

seventy-three, 

BY  BANKS  &  BROTHERS, 
in  the  office  of  the  Librarian  of  Congress,  at  Washington. 


JUSTICES  OF  THE  SUPREME  COURT 

D  USING  THE  YEAB  1873. 


First  District : 

DANIEL  P.  INGRAHAM.  ENOCH  L.  FANCHER. 
NOAH  DAVIS.          JOHN  R.  BRADY. 
GEORGE  C.  BARRETT. 

Second  District : 

JASPER  W.  GILBERT.         CALVIN  E.  PRATT. 
ABRAHAM  B.  TAPPEN.       JOSEPH  F.  BARNARD. 

Third  District : 

PETER  S.  DANFORTH.        THEODORE  MILLER. 
WILLIAM  L.  LEARNED.      CHARLES  R.  INGALLS. 

Fourth  District : 

PLATT  POTTER.  AMAZIAH  B.  JAMES. 

AUGUSTUS  BOCKES.  JOSEPH  POTTER. 

Fifth  District : 

JOSEPH  MULLIN.  CHARLES  H.  DOOLITTLE. 

LE  ROY  MORGAN.  GEORGE  A.  HARDIN. 

Sixth  District : 

DOUGLASS  BOARDMAN.     WILLIAM  MURRAY,  JB. 
JOHN  M.  PARKER.  RANSOM  BALCOM. 

Seventh  District : 

THOMAS  A.  JOHNSON.*      JAMES  C.  SMITH. 
DAVID  RUMSEY.t  CHARLES  C.  DWIGHT. 

E.  DARWIN  SMITH. 

*  Died  Dec.  5,1872. 

f  Appointed  in  place  of  Thomas  A.  Johnson,  deceased,  Dec.  28, 1872. 


tv  JUSTICES  OF  THE  SUPREME  COURT. 

Eighth  District : 

GEORGE  BARKER.  CHARLES  DANIELS. 

JOHN  L.  TALCOTT.  GEORGE  D.  LAMONT. 


JUSTICES  OF  THE  GENERAL  TERM. 

First  department,  DANIEL  P.  INGRAHAM,  presiding  justice; 
NOAH  DAVIS,  ENOCH  L.  FANCHER,  associate  justices. 

Second  department,  JOSEPH  F.  BARNARD,  presiding  justice ; 
JASPER  "W.  GILBERT,  ABRAHAM  B.  TAPPEN,  associate  justices. 

Third  department,  THEODORE  MILLER,  presiding  justice; 
PLATT  POTTER,  JOHN  M.  PARKER,  associate  justices. 

Fourth  department,  JOSEPH  MULLIN,  presiding  justice } 
THOMAS  A.  JOHNSON,  E.  DARWIN  SMITH,*  JOHN  L.  TALCOTI, 
associate  justices. 

FRANCIS  C.  BARLOW,  Attorney-General. 

•Appointed  in  place  of  Thomas  A.  Johnson,  who  died  Dec.  5, 1873. 


TABLE  OF  OASES 


REPORTED    IN    THIS    VOLUME 


PAGE. 

Allen  y.  Todd 222 

Ames,  Tyler  v 280 

Ames  v.  Duryea 155 

Arend  v.  The  Liverpool,  New 
York  and  Philadelphia  Steam- 
ship Company 457 

Assessors  of  Mechanicville, 
People  ex  rel.  American 
Linen  Thread  Company  v.. . .  105 

B. 

Bailey  v.  Southwick 356 

Biker,  FUkins  v 516 

Biker  v.  Baker 509 

Btngs,  Stack  v 262 

Birclay  v.  The  Quicksilver  Min- 
ing Company 25 

Beals,  Terwilliger  v 403 

Beals  v.  Stewart 408 

Bonnet,  Shirley  v 512 

Board  of  Supervisors  of  Oneida 

County,  Loomis  v 269 

Board  of  Supervisors  of  Rich- 
mond County  v.  Wandel 33 

Borden,  Gillett  v 219 

Bowery    National    Bank,   Ha- 

gen  v 490 

Buck  v.  The  City  of  Lockport,  251 
Burchard,  Voorhees  v 176 


c. 


56 


Carpentier  v.  Minturn 

Champlain  Transportation  Com- 
pany, Dougan  v 430 


FA8& 

Champlin  v.  The  Railway  Pas- 
senger Assurance  Company  .     71 

Chapin,  Hunt  v 139 

Cheshire,  Lament  v 234 

Chittenden,  Kingsland  v 15 

City  of  Elmira,  The  National 

Bank  of  Chemung  v 116 

City  of  Lockport,  Buck  v 251 

City  of  Rochester,  Fisher  v 225 

City  of  Rochester,  Hassan  v 185 

Clarke  v.  Rannie 210 

Clift  v.  Northrup 330 

Collins  v.  Collins 368 

Cooper  v.  Felter 482 

Crawford,  Hildebrant  v ...  502 

Crawford  v.  Hildebrant 502 

Crombie,  Terrett  v 83 

D. 

Daniell,  The  People  ex  rel.  Un- 
derwood v 44 

Decker  v.  Leonard 264 

Dorn  v.  Fox 162 

Dougan     v.     The     Champlain 

Transportation  Company 430 

Doyle  v.  Gibbs 180 

Dunning    v.    Ocean    National 
Bank   of  the  City  of  New 

York. 29tt 

Duryea,  Ames  v 155 

E. 

Easton,  Pullar  v. 247 

Edwards,  Wilson  v.....  .184 


VI 


TABLE  OF  CASES  REPORTED. 


F. 

PAGE. 

Fabbri  v.  The  Mercantile  Mutual 

Insurance  Company 446 

Fargo,  Westcott  v 319 

Felter,  Cooper  v 485 

Fethers,  Mowers  v 112 

Filkins  v.  Baker 516 

First  National  Bank  of  Kings- 
ton, Van  Leuvan  v 373 

Fisher  v.  City  of  Rochester 225 

Ford,  Nathaniel,  Matter  of  peti- 
tion of 92 

Fox,  Dorn  v 162 

Frost,  Stone  v 440 


G. 

German  United  Evangelical  St. 
Stephen's  Church,  People  ex 

rel.  Dilcher  v 172 

Gibbs.Doylev 180 

Giles,  Perkins  v 437 

Gillett  v.  Borden 219 

Gillis,  Ryckman  v ; 79 

Glen  and  Hall  Manufacturing 

Company  v.  Hall 158 

Gove  v.  Lawrence 89 

Graham  v.  The  People 149 

Green,  Livingston  v 50 


H. 

Hackettstown  Bank  v.  Kea 455 

Hackford  v.    The  New   York 

Central  Railroad  Company. . .  381 
Hagen    v.    Bowery    National 

Bank 490 

Haggerty  v.  The  People,  No.  1,  332 
Haggerty  v.  The  People,  No.  2,  347 
Hall,  Glen  and  Hall  Manufac- 
turing Company  v 158 

Hassan  v.  The  City  of  Roches- 
ter  185 

Herbert  v.  Smith 493 

Hildebrant  v.  Crawford 502 

Hildebrant,  Crawford  v 502 


PAGE. 

Hill,  Shepherd  v 387 

Hincken  v.  The  Mutual  Benefit 

Life  Insurance  Company 21 

Hinde  v.  Smith 464 

Hubbard,  Washburn  v 11 

Hudson  River  Railroad   Com- 
pany, Ludlow  v 128 

Hunt  v.  Chapin 139 

Hunt,  Pitts  v 146 


J. 


Jones  v.  Milbank 78 


K. 

Kellum  John,  Matter  of  will  of.  1 

Kingslandv.  Chittenden 15 

Knapp,  Porter  v 125 


Lament  v.  Cheshire 2J4 

Lawrence,  Gove  v 69 

Lawrence  v.  Maxwell 469 

Lawrence,  Palmer  v 282 

Leitch,  Packwood  v 303 

Leitch,  Pardee  v 303 

Leonard,  Decker  v 264 

Lewis  v.  Rose 206 

Liscomb   v.   The  New  Jersey 
Railroad  and  Transportation 

Company 75 

Liverpool,  New  York  and  Phila- 
delphia Steamship  Company, 

Arend  v 457 

Livingston  v.  Green 50 

Loomis  v.  Board  of  Supervisors 

of  Oneida  County 269 

Lorillard  Fire  Insurance  Com- 
pany, Perry  v. 201 

Lossee  v.  Williams 228 

Ludlow  v.  The  Hudson  River 
Railroad  Company 128 


TABLE  OF  CASES  REPORTED. 


vu 


M. 

PAGE. 

McKinley  v.  Tucker 214 

Matter  of  the  will  of  John  Kel-~ 

him 1 

Matter  of  the  petition  of  Na- 

thanielFord 93 

Maxwell,  Lawrence  v 469 

Mercantile    Mutual    Insurance 

Company,  Fabbri  v 446 

Milbank,  Jones  v 73 

Miller,  Moore  v 396 

Minch,  The  National  Life  Insu- 
rance Company  v 100 

Minturn,  Carpentier  v 56 

Monroe  v.  Upton 255 

Moore  v.  Miller 896 

Mowers  v.  Fethers 112 

Muller  v.  Pondir 472 

Mutual  Benefit  Life  Insurance 
Company,  Hincken  v 21 

N. 

National  Bank  of  Chemung  v. 
CityofElmira 116 

National  Life  Insurance  Com- 
pany v.  Minch 100 

New  Jersey  Railroad  and 
Transportation  Company,  Lis- 
comb  v 75 

Newman  v.  The  People 460 

New  York  Central  Railroad 
Co.,  Hackford  v 381 

New  York  Central  Railroad 
Co.,  Worthington  v 257 

Northrop,  Clift  v.. 330 

o. 

Ocean  National  Bank  of  the  City 
of  New  York,  Dunning  v 296 


P. 

Packwood  v.  Lcitch 
Palmer  v.  Lawrence 
Pardeev.  Leitch. .. 


303 
282 
303 


PAGE. 

Pechner  v.  Phoenix  Insurance 

Co 411 

People  ex  rel.  Am.  Linen  Thread 
Co.  v.  Assessors  of  Mechanic- 

ville 105 

People  ex  rel.   Dilcher  v.    St. 

Stephen's  Church 172 

People,  Graham  v 149 

People,  Haggerty  v.,  No.  1 333 

People,  Haggerty  v.,  No.  2 347 

People,  Newman  v 460 

People,  Rosenzweig  v 463 

People  ex  rel.  Underwood  v. 

Daniell 44 

People  v.  The  President,  etc. , 
of  New  York  Gas-light  Co.,  467 

Perkins  v.  Giles 437 

Perry  v.  Lorillard  Fire  Insur- 
ance Co 201 

Petition  of  Nathaniel  Ford,  In 

the  Matter  of 93 

Phosnix  Insurance  Co.,  Pech- 
ner v 411 

Phoanix  Mutual  Life  Insurance 

Co.,  Tifftv 198 

Pierce  v.  Wright 306 

Pitts  v.  Hunt 146 

Pondir,  Muller  v 472 

Porter  v.  Knapp 125 

President,   etc.,  of  New  York 
Gas-light  Co.,  The  People  v.,  467 

Pullar  v.  Easton 247 

Putnam   Fire   Insurance   Co., 
Whitwellv ^ 166 


Q. 

Quicksilver   Mining   Co,    Bar- 
clay v 25 

R. 

Railway  Passengers'  Assurance 

Co.,  Champlin  v 71 

Rannie,  Clarke  v 210 

Rea,  Hackettstown  Bank  v 455 

Rogers  v.  Wheeler 420 


VU1 


TABLE  OF  CASES  REPORTED. 


PAGE. 

Rose,  Lewis  v 206 

Eosenzweig  v.  The  People 462 

Ryckmanv.  Gillis 79 


S. 

St.  Stephen's  Church,  The  Peo- 
ple ex  rel.  Dilcher  v 172 

Scott,  Sortore  v 271 

Shepherd  v.  Hill 387 

Shirley  v.  Bennett 512 

Smith,  Herbert  v 493 

Smith,  Hinde  v 464 

Smith  v.  Smith 313 

Smith,  White  v 5 

Snell,  Van  Slyck  v 299 

Sortore  v.  Scott 271 

Southwick,  Bailey  v 356 

Stack  V.  Bangs 262 

Stewart,  Beals  v 408 

Stone  v.  Frost 440 

Supervisors  of  Oneida  County, 

Loomis  v 269 

Supervisors  of  Richmond  Coun- 
ty v.  Wandel 33 


T. 

Terrett  v.  Crombie 82 

Terwilliger  v.  Beals 403 

Tifft  v.   Phosnix  Mutual   Life 

Insurance  Co 198 

Todd,  Allen  v 222 


PAGE. 

Tucker,  McKinley  v 214 

Tucker  v.  Woolsey 482 

Tyler  v.  Ames 280 


u. 

Upton,  Monroe  v 255 


V. 

Van  Leuvan  v.  The  First  Na- 
tional Bank  of  Kingston 373 

Van  Slyck  v.  Snell 299 

Voorhees  v.  Burchard 176 


w. 

Wandel,   Supervisors  of  Rich- 
mond County  v 33 

Washburnv.  Hubbard 11 

Westcott  v.  Fargo 319 

Wheeler,  Rogers  v 420 

White  v.  Smith 5 

Whitwell  v.  The  Putnam  Fire 

Insurance  Co 166 

Williams,  Lessee  v 228 

Will  of  John  Kellum,  In  the 

Matter  of 1 

Wilson  v.  Edwards 134 

Woolsey,  Tucker  v 482 

Worthington  v.  The  New  York 

Central  Railroad  Co 257 

Wright,  Pierce  v 306 


TABLE  OF  OASES 

CITED    IN    THIS    VOLUME, 


A. 

PAGE. 

Abbey  v.  Deyo 394 

Abraham  v.  Plestoro 28,    29 

Adams  v.  Bockingham  Mut.  Ins. 

Co 202 

Adams  V.R.R  Co 17 

./Etna  Ins.  Co.  v.  Tyler 22 

Alexander  v.  Green 329 

Allen  v.  Crary 180 

Allen  v.  The  City  of  Buffalo.. . .  191 

Allen  v.  Kingsbury 17,    19 

Allen  v.  Merch.  Bk 454 

Allen  v.  Miller 225 

Allenv.Smith 45 

Allicot  v.  Turner 13 

Ames  v.  N.  Y.  Union  Ins.  Co.,  167 

416 
Amoskeag  Mf  g  Co.  v.  Spear. .  160 

Angel  v.  Pownal 37 

Argall  v.  Bryant 133,  225 

Armstrong  v.  Gilchrist 217 

Artcherv.  Zeh 13 

Arthur  v.  Brooks 22 


B. 

Bagley  v.  Smith ,....,...»  18 

Baileyv.  Buel 165 

Baldwin  v.  The  City  of  Oswego,  254 

Ballard  v.  Burchard 401,  402 

Ballentine  v.  McDowell 184 

Baker  v.  Taylor 256 

Bk.  of  Chenango  v.  Brown. ...    46 

LAPSING — VOL.  VL      2 


PAGE. 

Bk.  of  Commonwealth  v.  Mayor 

of  N.Y ..  124 

Bk.  of  Toronto  v.  Hunter 331 

Banow  v.  Eldridge 429 

Barclay  v.  Quicksilver  Mining 

Co 30 

Barhydt  v.  Shepard..  110,  124,  193 

292 

Barker  v.  The  People 46 

Barrett  v.  The  Third  Ave.  B.  B. 

Co 388 

Barrett  v.  The  Union  M.  Ins.Co.,  169 

Barrick  v.  Austin 22 

Barto  v.  Himrod. 46 

Bates  v.  Bosekrans 22 

Beach  v.  Bay  State  Co 22 

Beach  v.  Vandewater 145 

Beadle  v.  The  Assessors  (supra),  123 

Beals  v.  Guernsey 29 

Beard  v.  The  City  of  Brooklyn,  254 

Beekman  v.  Bonser 298 

Beeler  v.  Turnpike 29 

Benjamin  v.  Saratoga  Mut.  Ins. 

Co 418 

Bennett  v.  Benjamin 76 

Beclar  v.  Turnpike  Co 28 

Benedict  v.  Ocean  Ins.  Co. ....  163 

Bell  v.  Cunningham 8 

Bempde  v.  Johnson 157 

Bennett  v.  Ditson. . . . ., 115 

Bennett  v.  Judson 198,  268 

Berkshire  Woolen  Co.  v.  Proc- 
ter   115 

Berridge  v.  Ward 17 

Bevan  v.  Turnpike 29 


TABLE  OF  CASES  CITED. 


Bigelow  v.  Stearns 285 

Bird  et  al.  v.  Carital 29 

Bird  v.  Pierrepont 29 

Bissell  v.  N.  Y.  C.  R E.  Co.,  20,  327 

Blakev.  Cole 13 

Blake  v.  The  Exch.  M.  Ins.  Co.,  170 

Blair  v.  Claxton 331 

Blaisdell  v.  Briggs 37 

Blanchard  v.  Ely 13 

Blanchard  v.  Weeks 420 

Bland  v.  The  State 838,  345 

Bliven  v.  K  E.  Screw  Co 454 

Bloodgood  v.  M.  and  H.  R.  R. 

Co 46 

Blossom  v.  Dodd 327,  328 

Blossom  v.  Griffith 429 

Blotv.  Boiceau 466,  468 

Boehen  v.  Williamsburgh  Ins. 

Co 168,416 

Bogert  v.  Bogert 600 

Bonito  v.  Mosquera 479 

Booth  v.  Bunce 29 

Booth  v.  Clarke 28 

Bortlyv.  Faulkner 224 

Bourne  v.  Gatliff. *....  454 

Bouton  v.  City  of  Brooklyn.. . .  193 

Bo  wen  v.  Washington  Co 37 

Bowers  v.  Smith 363 

Boyce  v.  Brockway 180,  181 

Boyd  v.  McLean 371 

Bradley  v.  Mutual  Benefit  Life 

Ins.  Co 30 

Bradley  v.  Nelson 16,  17 

Bradley  v.  Rice 16,  17,    20 

Brady  v.  The  Sup'rs  of  N.  Y.,  253 
Breasted  v.  Farmers'  L.  &  T.  Co.,    72 

Brewster  v.  Lilew 234 

Bridgman  v.  Jennings 20 

Brittam  v.  Kinnard . .  295 

Britton  v.  Lawrence 37,    44 

Broadwell  v.  Getman. 12 

Brookman  v.  Hamill 434 

Brownell  v.  Winnie 302 

Brown  v.  Cattaraugus  County 

Mutual  Ins.  Co 418 

Brown  v.  Chantry 207 

Brown  v.  Smith 290* 

Binssev.  Wood 207 

Buckle  v.  Eckhert 142 


PAGE 

Bucklin  v.  Ford 297 

Bulger  v.  Roche 69 

Burgess  v.  Simonson 388 

Burns  v.  Bryant 180 

Burns  v.  Erben f..  207 

Burrittv.  Silliman 298 

Bushel  v.  Miller .  180 


C. 

Cabot  v.  Britt 37 

Caled  R.  Co.  v.  Sprot 83 

Campbell  v.Charter  Oak  Ins.  Co. ,    22 

Campbell  v.  Ewart 207 

Cameron  v.  Wentz 29 

Case  v.  Carroll 86 

Campbell  v.  Hall 74 

Campbell  v.  Logan 2 

Campbell  v.  Perkins 301,  302 

Camput  v.  Fulton 207 

Cardell  v.  McNeil 234 

Carpenter  v.   The   Providence 

Ins.  Co 168 

Carroll  v.  Charter  Oak  Ins.  Co.,  416 

417 

Castle  v.  Duryea 207 

Cayle  v.  Case 115 

Chadwick  v.  Lamb 281 

Chalmer  v.  Bradley 87 

Chamberlain  v.  Thompson  ....  243 

Chambers  v.  Lewis 331 

Chase,  Administrator,  v.    The 

American  Steamboat  Co 434 

Chegary  v.  Jenkins 124 

Chemung  Bank  v.  Supervisors 

of  Chemung  Co 37,    41 

Chester  v.  Bank  of  Kingston. . .  371 

Child  v.  Brace 28 

Child  v.  Starr 16,  20 

Child  v.  Sun  Mutual  Ins.  Co. . .     22 

Christmas  v.  Russell 69 

Chubbuck  v.  Vernam 325 

City  of  Peoria  v.  Kidder 97 

Claremont  v.  Carleton 17 

Clarke  v.  Dutcher 69 

Clarke  v.  Meigs 8 

Clark  v.  Metropolitan  Bk 505 

Clark  v.  Miller 46 


•TABLE  OF  CASES  CITED. 


XI 


PAGE. 

Clark  v.  Rowling 256 

Clark  v.  Thompson 13 

Clark  v.  Wethey 17 

Cleek  v.  The  Commonwealth,  342 

345 

Coates  v.  Holbrook 160 

Cobb  v.  Dows 180,  181 

Cochran  v.  Dinsmore 826 

Collier  v.  Idlay's  Ex'ra 2 

Colvin  v.  Burnett 22 

Com'l  Bk.  v.  First  Nat.  Bk 492 

Commonwealth  v.  Brice 87 

Committ  v.  Beaqua 87 

Comstock  v.  Van  Deusen. .  16,  17 

Conklin  v.  Edgerton. 299 

Connah  v.  Hale 180 

Conroy,  Adm'r,  v.  Gale 263 

Cook  v.  Comley 17 

Cooper  v.  "Whitney 88 

Copeland  v.  Stevens 202 

Cornell  v.  Dakin 256 

Corning  v.  Southland 216,  218 

Corning  v.  White 28 

Costigan  v.  Mohawk  and  H.  R. 

R 18 

Cowen  v.  Doly 160 

Cox  v.  Fredley 17 

Craigv.  Wells 81 

Culler  v.  Wright 456 

Camming  v.  The  Mayor,  &c. ,  of 

Brooklyn. 254 

Cummings  v.  Morris 831 

Curry  v.  Pringle 207 

Cromwell  v.  Stevens. 115 

Crowley  v.  Panama  R.  R.  Co. .  28 
Cruger  v.  Hud.  R.  R.  R  Co. . .  22 

Curtis  v.  Brooks 69 

Cutler  v.  Wright. 30 


Dausey  v.  Rich 115 

Darlington  v.  The  Mayor 97 

Davenport  v.  Ruckman 78 

Davison  v.  Stanley 145 

Davis  v.  Blunt 242 

Davis  v.  Duffle  . .  .349 


PAGE. 

Davis  \ .  Gaw 297 

Davis  v.  Shields 8 

Delamater  v.  The  People 461 

Den  v.  Wright. .; 17 

Demeyer  v.  Legg 17 

Depeyster  v.  Clendenning 298 

Devendorf  v.  Beardsley 198 

De  Tassett  v.  Cronsselatt 8 

DeWittv.  Burnet 28 

De  Witt  v.  Walton 506 

Dickinson  v.  Valpy 143 

Dixon,  Ex'r,  v.  Ramsay,  Ex'r. .    28 

Pobson  v.  Collis 13 

Dodd  v.  City  of  Hartford 193 

Doe  dem.  Hughes  v.  Lakin  ....    20 

Doe  v.  Derry., 183 

Dolan'sCase 844,  355 

Dominick  v.  Michael 299 

Doolittle  v.  Lewis 28 

Dorr  v.  N.  J.  Steam  Nav.  Co. . .  329 

Dorwin  v.  Strickland 294 

Douglass  v.  Forrest 297,  299 

Duffy  v.  The  People 46 

Dunham  v.  Williams 17 

Dunlevy  v.  Tallmadge 28 

Dunning  v.  Roberts  505 

Draper  v.  Snow 234 

Dresser  v.  Brooks 256 

Dresser  v.  Dresser 13 

Dwight  v.  Clarke 69 


E. 

East  India  Co.  v  McDonald. ...  223 
Elwell  v.  Chamberlain  . . .  198,  233 

Elyv.  Ehle 180 

Evens  v.  Llewellen 222 

Evans  v.  Root 8 

Exchange  Bank  v.  Monteath. . .  144 

Ex  parte  Brunding 351,  853 

Ex  parte  Clifford 340,  345 

Ex  parte  Jennings 17 

Ex  parte  Meyers 350,  851,  353 

Ex  parte  Milligan 49 

Ex  parte  Turner 851 

Ex  parte  Wilson 87 


Xll 


TABLE  OF  CASES  CITED. 


F. 

PAGE. 

Farmers'  and  Mechanics'  Bk.  v. 

Butchers'  and  Drovers'  Bk. . .  492 

Farnsworth  v.  Child 243 

Farrand  v.  Marshall 82,  131 

Farrel  v.  Calkins 300,  302 

Farrel  v.  Hildredth 281 

Feise  v.  Wray 477 

Fenner  v.  Buffalo  and  State  Line 

R.  R.  Co 429 

Ferguson  v.  Hamilton 232 

Ferris  v.  The  People 339 

Ferris  v.  Union  Ferry  Co 78 

Field  v.  Mould 300 

Finn  v.  Harrison 233 

First  National  Bank  of  Cortland 

v.  Green 127 

Fisk  v.  The  Chicago  R,  etc.,E. 

R.  Co 28 

Fleetwood  v.  City  of  New  York,  69 

Fletcher  v.  Phelps 17 

Footv.  Stevens 29 

Foster  v.  Van  Wyck 193 

Foulder  v.  Willoughby . . .  180,  185 

Fountain  v.  Pettee 419 

Foy  v.  Harding 13 

Fralt  v.  Woodward 17 

French  v.  Buffalo  N.  S.  and  Erie 

R.  R.  Co..  327 

French  v.  Carhart 19 

Frost  v.  Saratoga  Mut.  Ins.  Co. . .  416 
Fulton  Fire  Ins.  Co.  v.  Baldwin,  263 


G. 

Gage  v.  Angell 331 

Gage  v.  Currier 288 

Ganson  v.  The  City  of  Buffalo,  254 

Gardner  v.  The  Mayor 69 

Garvey  v.  Jarvis 162 

Gates  v.  Madison  Ins.  Co 72 

Genesee  Valley  Nat.  Bank  v. 
Supervisors  of  Livingston  Co.,  124 

Gerard  v.  Stagg 300 

Gilbert  v.  Sharp 480 

Gilbert  v.  The  Phoenix  Ins.  Co.,  168 

Gildersleve  v.  The  People 46 

Gould  v.  Chapin 429 


Gould  v.  Mortimer 304 

Grant  v.  Morse 325 

Gray  v.  Goodman 331 

Greenleaf  v.  Kitton 16 

Green  v.  Rumsey 207 

Greenwood  v.  Brodhead 28 

Griffin  v.  Marquard 388 

Grosvenor  v.  The  Atlantic  Fire 

Ins.  Co 202 

Grunslade  v.  Down 143 

Guest  v.  Forehand 28 

Guildaume  v.  Hamburg  and 

Am.  Packet  Co 329 


H. 

Hallemere  v.  Albro 178 

Hallock  v.  Woolsey 87 

Halloway  v.  Hampton 12 

Hall  v.  Austin 277 

Hall  v.  Sampson 281 

Hall  v.  Earnest 519 

Hall  v.  The  Mechanics'  M.  Fire 

Ins.  Co 169 

Hammond  v.  McLachlan 17 

Hammond  v.  Tillotson 366 

Hanley  v.  Wood 22 

Hanlon  v.  Supervisors,  &c 97 

Harmon  v.  Bird 69 

Harris  v.  Porter 18 

Harris  v.  Pratt 476 

Harris  v.  Roberts 82 

Harris  v.  Ryding 82 

Hasbrouck  v.  Kingston  Board 

of  Health 198 

Hatcher  v.  Rochleaw 29 

Hatch  v.  Carpenter. 16 

Hathorn  v.  Stinson 16 

Haynor  v.  James 46 

Hay  wood  v.  Miller 180,  183 

Heald  v.  Carey 180 

Healy  v.  Bainbridge 143 

Hedges  v.  Seeley 480 

Henderson  v.  Brown 292 

Herring  v.  Fisher 17,  20 

Hern  v.  Nichols 492 

Hey  wood  v.  The  City  of  Buffalo,  362 
Hillv.  Selick ,.  292. 


TABLE  OF  CASES  CITED. 


xm 


PAGE. 

Hitchcock  v.  N.  W.  Ins.  Co.. .  202 

Holbrook  v.  Vose 479 

Holdenv.  Putnam  Fire  Ins.  Co.,  416 

Holland  v.  Prior 277 

Holmes  v.  Broughton 28 

Homer  v.  Wood 69 

Hooker  v.  Tuckerman 29 

Hooper  v.  Wells,  Fargo  &  Co.,  329 

Hope  Ins.  Co.  v.  Taylor 28 

Hopkins  v.  Grove.  ...  207 

Houston  v.  Moore 48 

Howard  v.  Bergen 13 

Howland  v.  Eldrege 312 

Howtayne  v.  Browne 145 

Hoyt  v.  Martinse 86 

Hoyt  v.  Thompson 28,  29,    32 

Huggans  v.  Fryer 281 

Hulet  v.  Swift 114 

Hunt  v.  Johnson 29 

Hutchinson  v.  Stall 37 

Huy  v.  Brown 439 

Hyatt  v.  Waite 168 


I. 


Ingalls  v.  Bosworth 288 

In  re  Empire  City  Bank 46 

In  re  Smith 46 

Irving  v.  Excelsior  Ins.  Co 22 

Ireland  v.  The  City  of  Rochester,  193 

J. 

Jackson  v.  Leggett 22 

Jackson  v.  Louw 17 

Jackson  v.  Parkhurst 184 

Jackson  v.  Tile 16 

Jackson  v.  Wood 46 

Jefferson  County  v.  Jones 37 

Jewell  v.  Wright 455 

Johnson  v.  Hunt 28 

Jones  v.  Holstein 17 

K. 

Kasson  v.  Mills 300 

Keen  v.  The  Queen 339 

Kent  v.  Kent  . ,  13 


PAGE. 

Kernochan  v.  Bowery  Ins.  Co.,    23 
Kimball  v.  The  Howard  Fire 

Ins.  Co 169 

King  v.  Bath 350 

King  v.  Donnelly 298 

King  v.  Ives 115 

Kingv.  King ..16,    17 

King  v.  Oakey. .  337,  338,  346,  355 

King  v.  Richardson 174 

King  v.  Talbot 277 

Knotchbull  v.  Fearnhead 276 

Kraft  v.Vickey 28 

Kundolfv.  Thalbeiner..          ,    30 


L. 

Ladue  v.  Griffith 429 

Lambert  v.  The  People , .  207 

Lamb  v.  Camden  and  Amboy 

R.R.  Co 422 

Lamb  v.  Grover 142 

Lampman  v.  Milks 132 

Lamott  v.  The  Hud.  Riv.  Ins. 

Co 168 

Lansing  r.  Case 207 

Lansing  v.  Van  Alstyne 22 

Lappin  v.  The  Charter  Oak 

Ins.  Co 202 

Large  v.  Bristol  Trans.  Co 29 

Lasala  v.  Holbrook 131 

Latourette  v.  Clark 76 

Lawrence  v.  Delano 178 

Lawrence  v.  Ocean  Ins.  Co 23 

Lawrence  v.  Simmons. 69 

Lee  v.  Tillotson 46 

Leflerv.  Field 505 

Leftwich  v.  The  Commonwealth,  344 

345 

Leggett  v.  Hunter 46 

Le  Guen  v.  Gouveneur 8 

Leonard  v.  Putney 225 

Leroy  v.  Platt 178 

Lewis  v.  Jones 37 

Liddle  v.  The  Market  Ins.  Co. .  167 

Lietch  v.  Wells 274 

Lightbody  v.  North  Am.  Ins.  Co.  416 

Lincoln  v.  Battelle 69 

Livingston  v.  Hollenback 193 


xiv 


TABLE  OF  CASES  CITED. 


PAGE. 

Livingston  v.  The  Mayor 46 

Lobdell  v.  Lobdell 507 

Lombard  Bank  v.  Thorp 28 

Looney  v.  Hughes 37,    41 

Lounsbury  y.  Purdy 371 

Louisville  &  Charleston  R.  R. 

Co.  v.  Selson 28 

Lord  v.  Com.  of  Sidney 17 

Lovell  v.  Robinson 16 

Lowenbey  v.  The  People. .  153,  339 

Louber  v.  Selden 69 

Lowell  v.  Robinson 17 

Luce  v.  Carley 17 

Luke  v.  City 46 

Lyon  v.  Kingdon 276,  339 


M. 

• 
McCarthy  v.  City  of  Syracuse. .  264 

McCartney  v.  Bostwick 29 

McClure  v.  Board  of  Supervisors 

of  Niagara  county 253 

McCosker  v.  Brady 298 

McCullock  v.  The  Mayor,  etc., 

of  Brooklyn 254,  255 

McCulloch  v.  Vail 17 

McCulloch  v.  Wall 17 

McElmoyle  v.  Cohen 29 

McGee  v.  Gibson 184 

McKinley  v.  Dada  et  al 214 

McLees  v.  Hale 13 

McNeil  v.  The  Tenth  National 

Bank 400,  402 

Maghee  v.  Camden  and  Amboy 

RR.  Co 422 

Mallory  v.  Tioga  R.  R.  Co 115 

Mandeville  v.  Guernsey 444 

Manning  v.  Wells 115 

Mann  v.  Fairchild 362 

March  v.  The  People 207 

Marsh  v.  Burt 17 

Marsh  v.  Hutchinson 157 

Martin  v.Mott.. 48 

Martin  v.  Supervisors  of  Greene 

county 258 

Mason  v.  Jones 2 

Masterson  v.  The  Mayor,  etc.,  of 

Brooklyn 18 


PASS. 

Maston  v.  Porter 127 

Mathews  v.  Howard  Ins.  Co —    72 

Matter  of  Albany  street 46 

Matter  of  George  W.  Robinson,  298 
Matter  of  the  Mayor  of  New 
York,    etc.,    for   improving 

Nassau  street 96 

Matter   of    John   and    Cherry 

Streets  46 

Matter  of  the  petition  of  Michael 

Tracey 99 

Matter  of  Townsend 46 

Meeker  v.  Van  Rensselaer. .  37,    44 
Mepeck  v.  Supervisors  of  Co- 
lumbia   193 

Mercantile  Mutual  Ins.  Co.  v. 

Calebs 327 

Merrick  v.  Van  Santvoord 28 

Merritt  v.  Millard 69 

Merwin  v.  Playf ord 142 

Meyer  v.  Harnden's  Express  Co.,  327 
Middleton  v.  Merchants'  Bank,    28 

Milbank  v.  Dennistoun 8 

Miller  v.  Brinkerhoff 285 

Miller  v.  Steam  Navigation  Co.,  429 

Miller  v.  Talcot 148 

Milton   v.    Hudson  R.    Steam- 
boat Co 8 

Miner  v.  McLean 37 

Minturn  v.  La  Rue 69 

Mohawk  and  Hudson  R.  R.  Co. 

v.  Clute 164 

Monell  v.  Dickey 28 

Monroe  v.  Douglass 28 

Monroe  v.  Potter 148 

Moore  v.  Evans 327 

Moore  v.  Fox 18 

Moore  v.  Little 55 

Moorv.  Newfield 87 

Morgan  v.  King 17 

Morris  v.  Sammond 8 

Morris  v.  The  People 41 

Morse  v.  James 286 

Mostyn  v.  Fabrigas 76 

Mosher  v.  Hotchkiss 234 

Mosselman  v.  Cain 28 

Mowatt  v.  Wright 69 

Mowry  v.  Walsh 402 

Mudgett  v.  Bay  State 115 


TABLE  OF  CASES  CITED. 


PAOE. 

Munech  v.  Cocknell 275,  276 

Murphy  v.  The  People 46 

Murray  v.  East  Ind.  Co. . .  297,  299 
Mygatt  v.  Washburn 165,  292 


Neustadt  v.  Joel 28 

Newman  v.  Jeune 180 

N.  H.  and  N.  Co.  v.  Quintard. .  510 

Nichols  v.  Primer. 180 

Nixon  v.  Hyserolt 198 

Norcross  v.  Norcross 115 

North  River  Bank  v.  Aymar. . .  144 

N.  S.  Rail  Co.  v.  Crosland 82 

Nutting  v.  Herbert 16,  17 

N.   Y.  and  Harlem  R.   R.   v. 
Marsh 69 


o. 

Oakley  v.  Stanley 178 

O'Brien  v.  Hagan 348 

O'Neil  v.  The  Buffalo  Ins.  Co.,    23 
Onderdonkv.  Mott...  362,  363,  366 

Ontario  Bank  v.  Mumford 202 

Owen  v.  The  Farmers'  Joint- 
stock  Ins.  Co... 168 

Owneys  v.  Speed 37 


P. 

Palmer  v.  Hutchins 256 

Parish  v.  Golden 121 

Parker  v.  Flint 115 

Parker  v.  Phoenix  Ins.  Co 22 

Parkhurst  v.  Foster 115 

Parks  v.  Purdy 180 

Parsons  v.  Lyman 28,    29 

Parsons  v.  Monteath 327 

Passinger  v.  Thorburn 13 

Pearsall  v.  Dwight 28 

Peaslee  v.  Gee 16,    17 

Peck  v.  Knox 180 

Pendlon  v.  The  Am.  Mut.  Ins. 
Co...  .  170 


FAQX. 

People  v.  Aimes 180 

People  v.  Assessors  of  Albany,  193 
People  v.  Assessors  of  Brooklyn,  193 
People  v.  Assessors  of  Brooklyn,  105 

108 

People  v.  Chase 207 

People  ex  rel.  Beadle  et  al.  v. 

Assessors  of  Elmira 123 

People  ex  rel.  Crane  v.  Ryder,    30 
People    ex    rel.  The  Nicolson 
Pavement  Co.  v.May or..  97,    98 

People  v.  Ferguson 109 

People  v.  Fredericks 110 

People  v.  Gardinier 37 

People  v.  Gates 511 

People  v.  Gonzales 21 

People  v.  Gonzales 454 

People  v.  Halsey 110 

People  v.  Howes 46 

People  v.  Jansen 36 

People  v.  Lawrence 41 

People  v.  The  Mayor 32 

People  v.  Merrill 151 

People  v.  Molineux 3,    50 

People  v.  Naughton 339 

People  v.  Navins 204 

People  v.  Phillips 153 

People  v.  Quimbo  Appo 339 

People  v.  Reddy 109,  292 

People  v.  Ryder 32 

People  v.  The  Supervisors  of 

Chenango 97,  292 

People  v.  Supervisors  of  Dela- 
ware County 253,  255 

People  v.  Supervisors  of  New 

York 253 

People  v.  Supervisors  of  Ulster,  123 

People  v.  Weed 152 

People  v.  Zeyst 311 

Perrin  v.  Dows 479 

Peter  v.  Compton 13 

Peterson  v.  Ayers 8 

Peterson  v.  Chemical  Bk .  28, 29,    32 

Peters  v.  Westboro 13 

Phoenix  Bk.  v.  Donnell 3 

Phillips  v.  Graham 331 

Phinney  v.  Phinney 28 

Pickering  v.  Bush  : 402 

Piggott  v.  Bush 297 


XVI 


TABLE  OF  CASES  CITED. 


PAGE. 

Pinkerton  v.  Woodward 115 

Place  v.  The  Union  Express  Co. ,  329 

Plato  v.  The  People 46 

Platt  v.  Crawford 28 

Platt  v.  Stout    30 

Plimpton  v.  Curtiss 13 

Post  v.  ^Etna  Ins.  Co 416 

Postv.  Post 180 

Powell  v.  Jessup 8 

Power  v.  Hathaway 69 

Pratt  v.  Samson 17 

Prescott  v.  Heard 243 

Prescott  v.  White 410 

Prest.,  &c.,  of  Westfield  Bk.  v. 

Cowen 144 

Price  v.  Neul 492 

Priest  v.  Rice 242 

Prindle  v.  Caruthers. .,  ,     30 


Q. 

Quin  v.  Lloyd 519 


E. 

Railroad  Co.  v.  Wallace 29 

Uaphael  v.  Bk.  of  England 493 

Rathbun  v.  Sawyer 46 

Reedv..Fitch    371 

Reed  v.  Randall 69 

Reed  v.  Randall 443 

Regma  v.  Charlton 339 

Regma  v.  Eastonhouse 157 

Rex  v.  Ratcliffe 239 

Rex  v.  Sheriff  of  Surrey 36 

Richards  v.  Richards 297 

Richv.  Milk 281 

Rider  v.  Powell 325 

Riley  v.  Griffin 17 

Robbins  v.  Wells 28 

Roberts  v.  Rockbottom 13 

Robinson  v.  Chamberlain 263 

Robinson  v.  N.  Y.  and  Erie  R. 

R.  Co 131 

Rockwell  v.  Nearing 46 

Rogers  v.  McLean 28 

Rood  v.  N.  Y.  and  E.  R.R.  Co.,  132 


PAGE. 

Roonee  v.  Phillips 299 

Root  v.  French 402 

Rudle  v.  Moore 8 

Ruggles  v.  Keeler 69 

Ruloff  v.  The  People 347 

Runk  v.  St.  John 28,  29,    32 

Russel  v.  Commonwealth 350 

Russell  v.  Maloney 17 

Russell  v.  Scudder 480 


s. 

Safford  v.  The  People 153 

Salters  v.  Everett 402 

Sanford  v.  Handy 198,  233 

Sarsfield  et  al.  v.  Healy 180 

Schennerhorn  v.  Burgess 510 

Schenectady  and  S.  Plk.  R.  Co. 

v.Thatcher 22 

Schooner  Lively  v.  Gamion 13 

Scott  v.  Rogers 8 

Scott  v.  Seymour 76 

Seneca  Indians  v.  Knight. ...  17 

Sere  v.  Coit .  ...  30 

Seymour  v.  Cook 115 

Seymour  v.  Sturges  .....  29,  82 

Shannon  v.  Comstock.  13 

Sharp  v.  Spier  .  94,  96 

Shaw  v.  Holland >  8 

Sheldon  v.  The  Atlantic  Fire 

and  Marine  Ins.  Co  168 

Sheldon  v.  Hopkins 28 

Sherman  v.  Barnard 69 

Sherman  v.  Niagara  Fire  Ins.  Co.  417 

Shute  v.  Dorr 815 

Sicardv.  Whale 28 

Siddle  v.  Market  Fire  Ins.  Co.,  416 

Siffkenv.  Wray 476 

Silliman  v.  Wing 69 

Simmons  v.  Sisson 506 

Simpson  v.  Dendy 17 

Sir  Charles  Ratcliffe's  Case ....  356 

Sizer  v.  Devening 17 

Skinner  v.  Kelly 285 

Smith  v.  Bull 76 

Smith  v.  Helmer 37,  44 

Smith  v.  Spinola 28 

Smith  v.  Tracy 233 


TABLE  OF  CASES  CITED. 


xvii 


PACK. 

Southal  v.  Tompkins 29 

Bpalding  v.  Spalding 180 

Spooner  v.  Brooklyn  City  R.  R. 

Co 436 

Stanley  v.  Green 17 

Staples  v.  Fairchild 285 

Starin  v.  The  Town  of  Genoa. .  311 

State  v.  Connell 352 

State  v.  Wamire 342,  345 

Stedman  v.  Western  Transporta- 
tion Co 329 

Stephenson  v.  New  York  and 

HarlemR.R 198 

Stevens  v.  Phcenix  Ins.  Co  ....    28 

Stewart  v.  McReady 115 

Stockwell  v.  Phelps 180 

Stokes  v.  Landegroff 160 

Story  v.  The   New   York  and 

Harlem  R.  R.  Co 300 

Strong  v.  Manf .  Ins.  Co 202 

Sumner  v.  First  Parish  in  Dor- 
chester  288 

Supervisors    of    Chenango   v. 

Birdsall 37,  40,  41 

Supervisors    of    Livingston    v. 

White 37 

Supervisors    of     Onondaga   v. 

Briggs 37,  69 

Susquehanna  Bk.  v.  The  Super- 

visorsof  Broome 193 

Suydam  v.  Allen 8 

Suydam  v.  Keyes 286 

Suydam  v.  Morris  Canal  Co 455 

Swift  v.   The  City  of  Pough- 

keepsie 124,  193 

Swinburne  v.  Swinburne  . .     .  371 


T. 

Taber  v.  Bradley 178 

Tawcett  v.  Charles 175 

Taylor  v.  Bradley 13 

Taylor  v.  Henry 37,  44 

Taylor  v.  Porter  et  al 46 

Thayer  v.  Bacon 17 

Thomas  v.  The  Merchants'  Bk.,    29 

Thompson  v.  Ebbitts 164 

Thompson  v.  Lacy 115 

LANSING — VOL.  VI.          3 


PAGE. 

Thorogood  v.  Robinson 180 

Throop  v.  Hatch 28 

Thurman  v.  Wells 198 

Toulandon  v.  Lachenmeyer 69 

Towson  v.  Tickall 298 

Trigge  v.  Lavallee 69 

Throop  v.  Smith 225 

Trustees  v.  Dickinson 17 

Tucker  v.  Tucker  487 

Turnpike  Co.  v.  Peddle 29 

Turnpike  Co.  v  McAnulty 29 

Turnpike  Co.  v.  Wallace 29 


V. 

Vail  v.  Owen 291 

Valten  v.  The  Nat.  Fund  Life 

Ins.  Co 198 

Vanderpoel  v.  Van  Valken- 

burgh  2 

Van  Diemen's  Land  Co.  v.  Cock- 

rell  8 

Van  Rensselaer  v.  Cottrell 291 

Van  Rensselaer  v.  Kidd 193 

Van  Rensselaer  v.  Whitbeck. .  121 

291 

Van  Santvoord  v.  St.  John 454 

Van  Valkenburgh  v.  Thyayer. .  180 

Vaughan  v.  O'Brien 510 

Wareham  v.  Mohawk  Ins.  Co.,  297 

Von  Latham  v.  Libby 207 

Voorhis  v.  Childs 276 

Vos  v.  Robinson , 23 


w. 

Walker  v.  Maxwell 28 

Walling  v.  Potter 115 

Wall  v.  Buffalo  Water-works. .     24 

Walter  v.  Lockwood 30 

Washburn  v.  Jones 112,  116 

Waugh  v.  Waugh 17 

Weaver  v.  Devendorf 291 

Wells  v.  Buffalo  Water-works,    22 

Wells  v.  Jackson  Iron  Co 16 

Wells  v.  Steam  Navigation  Co.,  328 

329 
Wenman  v.  Mohawk  Ins.  Co. . .  299 


XV111 


TABLE  OF  CASES  CITED. 


PAGE. 

Wesley  Church  v.  Moore 29 

Westervelt  v.  Craig 46 

West  v.  Am.  Ex.  Bank 22 

Wheeler  v.  McFarland 180 

Whitbeck  v.  Schuyler 505 

White  v.  Platt 480 

Wheeler  v.  Newbould 480 

Whitney  v.  Lewis 69 

Wierv.  Hill 12 

AViles  v.  Winsterley 82 

Willets  v.  Vandenburgh 29 

WHlots  v.  Waite 29,    32 

Willetts  v.  White 28 

Williams  v.  Reynolds 8 

Williams  v.  Storrs 28 

Willis  v.  The  People 154 

Wilson  v.  Genesee  M.  Ins.  Co. .  168 

Wilson  v.  Hill ; 202 

Wilson  v.  Little  . .  .480 


PAO«. 

Wilson  v.  Robinson 207 

Winchell  v.  Hicks 148 

Winslow  v.  Buet 69 

Wintermute  v.  Clarke 115 

Wise  v.  Withers 288 

Witbeck  v.  Holland 429 

Wood  v.  City  of  Brooklyn 46 

Wood  v.  Whitney 22 

Wooster  v.  The  Hartford  Fire 

Ins.  Co 169 

Worth  v.  Edmonds 8 

Wright  v.  Delafleld 162 

Wyman  v.  Farnsworth 69 

Wynehamer  v.  People 46 


Y. 

v.  Catlett. 


CASES   ADJUDGED 


IN  THE 


STJPEEME    OOTJKT 


OF  THE 


STATE  OF  NEW  YORK. 


IN  THE  MATTER  OF  THE  WILL  OF  JOHN  KELLUM,  deceased.       e     i 

50a  298 

(GENERAL  TERM,  SECOND  DEPARTMENT,  SEPTEMBER,  1872.) 

The  provisions  of  the  Revised  Statutes  (§  80,  2  R.  S.,  61),  under  which  the 
next  of  kin  may  contest  the  probate  of  wills  of  personal  property,  are 
inapplicable  to  wills  which  dispose  of  both  real  and  personal  property; 
they  relate  to  wills,  exclusively,  of  personal  estate. 

^HIS  was  an  appeal  from  an  order  of  the  surrogate  of 
Queens  county,  dismissing  proceedings  upon  the  return  of  a 
citation  issued  in  due  form  of  'law  under  2  R.  S.,  61,  §  32,  on 
allegations  against  the  validity  of  the  will  of  John  Kellum, 
deceased,  and  the  competency  of  the  proof  thereof. 

The  will  had  been  established  as  a  will  of  real  and  per- 
sonal estate,  and  consisted  of  a  single  provision  in  favor  of 
the  widow  of  the  deceased,  as  follows,  viz. : 

"  I  give,  devise  and  bequeath  unto  my  beloved  wife,  Han- 
nah Kellum,  and  to  her  heirs  and  assigns  forever,  all  my 
property  and  estate  of  every  nature  and  description  whatso- 
ever, and  constitute  and  appoint  her  executrix  of  this  my 
will,  revoking  hereby  all  other  and  former  wills  by  me  made." 

Upon  return  of  the  citation,  objection  was  made  to  the  juris- 
LANSING  — VOL.  VI.  1 


CASES  IN  THE  SUPREME  COURT    [Sept., 


Matter  of  the  will  of  John  Kellum. 


diction  and  authority  of  the  surrogate  to  revoke  the  probate 
of  the  instrument  under  the  statute,  inasmuch  as  the  paper 
propounded  and  established  contained  provisions  for  the  dis- 
posal of  both  real  and  personal  estate.  The  objection  was 
sustained,  and  the  surrogate  dismissed  the  proceedings. 

Philip  S.  Crooke,  for  the  appellant.  The  probate  was 
effective  as  that  of  a  will  of  personal  property.  (Laws  1837", 
chap.  460,  §§18,  19 ;  Vanderpoel  v.  Van  Valkeriburgh,  6  N. 
Y.,  190 ;  Burrill's  Law  Diet.,  "Will ;  Campbell  v.  Logan,  2 
Bradf.,  90;  Willard  on  Ex'rs,  03;  Collier  v.  Idlers 
Ex'rs,  1  Bradf.,  94^98;  Mason  v.  Jones,  2  id.,  181,  325.) 
The  object  of  the  statute  was  to  allow  contest  of  a  will  after 
probate  on  allegations  before  the  surrogate  in  regard  to  the 
personal,  and  in  a  trial  at  law  in  regard  to  the  real  estate. 

JR.  Ingraham,  for  the  respondent. 

.  / 
Present — BARNARD,  P.  J.,  GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT  J.  The  decision  of  this  case  depends 
upon  the  proper  construction  of  §  30,  art.  2,  title  1,  chap.  6, 
part  2,  of  the  Kevised  Statutes.  (2  R.  S.,  61.)  By  that 
section  it  is  provided  that  "  notwithstanding  a  will  of  personal 
property  may  have  been  admitted  to  probate,  any  of  the  next 
of  kin  to  the  testator  may  at  any  time  within  one  year  con- 
test the  same  or  the  validity  of  such  will." 

It  is  contended  by  the  appellant  that  inasmuch  as  the  will 
of  the  testator  embraced  personal  as  well  as  real  property,  it 
is  a  will  of  personal  property  within  the  meaning  of  this 
statute.  "We  are  of  a  contrary  opinion.  Title  1,  of  chap.  6, 
in  which  the  provision  in  controversy  is  contained,  has  this 
heading  or  inscription  :  "  Of  wills  and  testaments  of  real  and 
personal  property,  and  the  proof  of  them."  This  title  is 
divided  into  three  articles,  the  headings  or  inscriptions  to 
which  are  as  follows,  viz. :  "Article  1.  Of  wills  of  real  pro- 
perty and  the  proof  of  them.  Article  2.  Of  wills  of  per- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  3 


Matter  of  the  will  of  John  Kelhim. 


eonal  property  and  the  probate  of  them.  Article  3.  General 
provisions  applicable  to  wills  of  real  and  personal  property." 
These  headings  or  inscriptions  are  not  titles  of  the  acts  in  the 
sense  which  brings  them  within  the  rule  that  the  title  of  an 
act  cannot  control  the  words  contained  in  the  body  of  the 
statute,  but  are  rather  parts  of  the  statute  itself  limiting  and 
defining  its  effect.  (People  v.  Molineux,  53  Barb.,  9 ;  S. 
C.,  40  N.  Y.  R.,  113.)  Under  this  rule  of  construction, 
wills  of  real  property  are  expressly  excluded  from  the  opera- 
tion of  the  second  article  of  the  statute  under  consideration. 
The  heading  to  that  article  is  equivalent  to  an  explicit  declara- 
tion that  the  provisions  thereof  shall  be  applicable  to  wills 
of  personal  property  only,  and  shall  not  embrace  wills 
whereby  real  property  is  devised. 

Such,  evidently,  was  the  intention  of  the  legislature,  as  is 
shown  by  the  different  provisions  relating  to  the  proof  of 
wills'  of  real  and  wills  of  personal  property,  the  legal  effects 
of  the  probate  of  each,  and  especially  by  the  omission  of  a 
provision  requiring  notice  to  the  heirs  or  devisees  of  the 
proceeding  to  contest  the  will,  after  the  probate  thereof.  It  is 
unnecessary  to  refer  to  those  provisions  particularly,  but  it 
will  be  sufficient  to  say  that  on  the  probate  of  a  will  of  per- 
sonal property,  the  next  of  kin  only  were  required  to  be  cited 
to  attend  the  probate,  whereas,  in  the  case  of  a  will  of  real 
estate,  notice  of  the  application  for  the  proof  thereof  was 
required  to  be  served  upon  the  heirs  of  the  testator.  The 
notice  to  the  next  of  kin  was  to  be  by  the  personal  service  of 
a  citation  six  days  before  the  day  appointed,  if  within  the 
county,  and  if  not  within  the  county,  by  a  publication  of  the 
citation  two  weeks,  in  a  newspaper  designated  by  the  surro- 
gate. The  notice  to  the  heirs  was  to  be  personally  served 
upon  those  residing  in  the  county  fifteen  days ;  upon  those 
residing  in  the  State,  but  not  in  the  county,  twenty  days  pre- 
vious to  the  application ;  and  upon  such  heirs  as  could  not 
be  found  in  the  State  or  did  not  reside  therein,  twenty  days 
previous  to  the  application,  or  by  publishing  it  six  weeks  in 
the  State  paper.  A  will  of  personal  property  was  admissible 


CASES  IN  THE  SUPREME  COURT    [Sept., 


Matter  of  the  will  of  John  Kellum. 


to  probate  on  the  testimony  of  a  single  witness,  whereas,  on 
the  proof  of  a  will  of  real  estate,  all  the  witnesses  to  the  will 
were  required  to  be  produced  and  examined,  if  alive  and 
within  the  State.  The  probate  of  a  will  of  personal  property 
was  made  conclusive  evidence  of  the  validity  of  the  will, 
while  in  the  case  of  a  will  of  real  estate  the  probate  was  not 
conclusive,  but  the  validity  of  the  will  was  subject  to  con- 
struction afterward,  in  an  action  at  law. 

It  was  the  conclusive  effect  of  the  probate  of  the  will  of 
personal  property  that  induced  the  enactment  of  the  section 
of  the  statute  under  consideration,  for  the  purpose  of  afford- 
ing to  the  next  of  kin,  who  had  not  been  notified  of  the 
probate,  an  opportunity  to  contest  the  validity  of  the  will 
and  to  have  the  probate  thereof  revoked.  (See  revisers'  notes , 
5  Edm.  Stat,  626.)  The  proceeding  which  the  statute  pro- 
vides for  this  purpose  is  inapplicable  to  a  will  of  real  and 
personal  property,  for  there  is  no  provision  for  any  notice  of 
it  to  heirs  or  devisees.  It  would  be  monstrous  to  give  a  con- 
struction to  the  statute  whereby  the  interests  of  such  persons 
could  be  cut  off  summarily,  without  any  notice  to  them  of 
such  proceeding. 

One  observation  more.  The  necessity  supposed  to  exist 
at  the  time  of  the  passage  of  the  enactment  in  question, 
seems  to  have  been  superseded  by  subsequent  alterations 
made  by  the  legislature  of  the  law  relating  to  the  proof  and 
recording  of  wills.  The  law,  as  it  now  stands,  prescribes  the 
same  mode  of  proceeding  and  proof  in  respect  to  wills  of  per- 
sonal as  to  wills  of  real  property,  and  provides  also  for  the 
recording  of  wills  of  personal  property.  (Laws  183Y,  524,  et 
seq.,  §§  5-18.)  This  statute  also  provides  that  whenever  any 
will  shall  be  recorded  as  a  will  of  real  estate,  it  shall  not  be 
necessary  to  record  the  same  as  a  will  of  personal  property. 
(Id.,  §  19.)  By  chapter  182  of  the  Laws  of  1846,  amended 
by  chapter  748  of  the  Laws  of  1869,  any  will  of  real  estate 
proved  before  the  surrogate  may  be  recorded  in  the  clerk's 
office  as  a  conveyance,  and  this  record  is  made  evidence  of 
the  will. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 


White  ».  Smith. 


The  consequence  of  holding  the  section  of  the  Revised 
Statutes  to  be  applicable  to  wills  of  real  and  personal  pro- 
perty would  be  to  impair,  if  not  to  destroy,  the  efficacy  of 
these  records.  For  the  surrogate  is  required,  in  case  he 
decides,  upon  the  hearing  of  the  proceeding  mentioned  in 
that  section,  against  the  validity  of  the  will,  or  that  it  has  not 
been  sufficiently  proved  to  have  been  the  last  will  and  testa- 
ment of  the  testator,  to  annul  and  revoke  the  probate  thereof. 
(2  R.  S.,  62,  §  35.)  This  course  of  legislation  is  indicative  of 
the  legislative  intent,  and  tends  to  strengthen  our  conviction 
that  the  construction  put  on  the  statute  in  question  by  the 
surrogate  was  correct. 

The  decree  appealed  from  is,  therefore,  affirmed,  with  costs. 


EDWABD  M.  WHITE,  Respondent,  v.  SPENCKB  H.  SMITH  et 
al.,  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  FEBRUARY,  1871.) 

Stock-brokers  may  not  revoke  their  general  agreement  to  buy,  hold  and 
sell  stocks  for  a  commission  and  interest  on  advances,  without  notice. 

And  they  are  liable  for  damages  sustained  by  their  employer  by  reason  of 
a  renunciation  of  the  agreement 

Where  a  broker,  hi  advance  of  orders,  purchases  and  delivers  stock  in  ful- 
fillment of  his  principal's  agreement  to  sell,  and  refuses  to  purchase  and 
deliver  subsequently  when  directed,  his  principal's  failure  to  attempt  a 
purchase  of  the  stock  through  others  is  no  answer  to  his  claim  for 
damages. 

And  the  principal  may  rely,  it  seems,  hi  such  case,  implicitly  upon  the 
fidelity  of  the  broker. 

The  damages  recoverable  are  the  difference  between  the  price  paid  upon 
the  unauthorized  purchase  and  market  value  of  the  stock  at  the  time  of 
refusal 

THIS  was  an  appeal  by  the  defendant  from  a  judgment  in 
his  favor  upon  trial  by  jury. 

The  action  was  brought  to  recover  damages  for  alleged 
breach  of  contract. 


6  CASES  IN  THE  SUPREME  COURT          [Feb.r 

White  v.  Smith. 

It  appeared  that  the  defendants,  who  were  stock-brokers  in 
New  York  city,  in  August,  1869,  made  a  contract  with  the 
plaintiff,  who  was  a  resident  of  St.  Louis,  Mo.,  by  which  they 
agreed  to  make  purchases  and  sales  of  stock  and  hold  and  carry 
the  same  subject  to  the  plaintiff's  orders,  upon  the  customary 
"margin,"  or  deposit  of  per  centage  as  security.  The 
defendants  were  to  be  paid  the  usual  commission,  and  also 
interest  on  any  excess  over  the  "margin"  in  the  amounts 
advanced  by  them.  The  plaintiff  deputized  one  Treadway  of 
New  York  to  act  for  him  in  respect  to  his  stock  operations  with 
the  defendants  under  the  agreement,  and  notified  the  defendants 
thereof;  and  between  the  date  of  the  contract  and  October  18, 
1869,  numerous  transactions  were  had  between  the  plaintiff  and 
defendants,  through  the  agency  of  Treadway ;  that,  on  the 
14th  of  October,  1869,  the  plaintiff  wrote  to  Treadway  from 
St.  Louis,  revoking  his  authority,  and  requested  him  to  inform 
the  defendants  thereof,  and  that  he  would  thereafter  commu- 
nicate with  them  directly.  On  the  16th  October,  he  also  tele- 
graphed to  Treadway  to  "  sell  300  shares  of  New  York  Cen- 
tral Railroad  stock  at  $181  per  share  or  over."  The  telegram 
and  letter  were  received  at  about  the  same  time  on  the  18th 
October,  and  Treadway  went  to  the  defendants'  place  of  busi- 
ness and  informed  one  of  them,  (the  defendant  Bowen),  who 
was  present,  of  the  revocation,  and  gave  them  at  the  same 
time  the  plaintiff's  order  for  the  sale  of  New  York  Central 
stock,  which  defendants  filled  the  same  day. 

Bowen  informed  Treadway  that  the  revocation  of  authority 
and  arrangement  by  which  plaintiff  was  to  communicate 
directly  with  defendants,  was  satisfactory,  and  Treadway  there- 
upon telegraphed  the  plaintiff  to  that  effect ;  but  afterward, 
during  the  same  day,  the  defendant  Smith  sent  for  Treadway, 
and  objected  to  his  withdrawing  from  the  agency,  and  subse- 
quently frequently  complained  to  Treadway  of  the  insuffi- 
ciency of  the  plaintiff's  margin.  Finally,  on  the  first  Novem- 
ber, he  requested  Treadway  to  give  him  directions  for  pur- 
chase of  300  shares  of  Central  stock,  for  the  purpose  of  cov- 
ering the  sale  of  the  same  amount  theretofore  made  on  the 


1871.]  OF  THE  STATE  OF  NEW  YORK. 


White  v.  Smith. 


18th  October.  Tread  way  insisted  that  he  had  no  authority  in 
the  matter,  but  finally,  on  being  urged,  directed  the  purchase. 
The  stock  was  then  rising  in  the  market,  and  the  purchase  was 
made  at  prices  somewhat  in  advance  of  the  price  at  which  the 
plaintiff  had  sold  or  agreed  to  sell.  It  appeared  also  that  a 
margin  of  some  $3,000  of  the  plaintiff's  money  was  then  in 
defendants'  hands. 

On  the  2d  November,  Central  stock  declined  in  price  and  fell 
considerably  below  the  price  at  which  the  contract  for  sale  had 
been  made  on  behalf  of  the  plaintiff.  On  that  day  the  plain- 
tiff communicated  directly  to  the  defendants,  by  telegraph, 
his  directions  for  purchase  of  stock  to  cover  his  previous 
sale. 

The  defendants  moved  for  dismissal  of  the  complaint,  but 
the  court  held  that,  for  the  purposes  of  the  case,  the  broker  is 
bound  to  obey  the  order  of  his  principal,  and  for  disobedience 
is  liable  to  pay  the  amount  of  profits  he  would  otherwise 
have  made.  The  court  also  refused  to  charge  that  the  defend- 
ants were  only  liable  for  nominal  damages.  It  was  contended 
by  the  defendants  that  the  original  agreement  with  the  plain- 
tiff was  conditional  upon  the  continuance  of  the  agency  of 
Treadway  to  act  on  his  behalf,  and  there  was  evidence  tend- 
ing to  show  this  fact. 

The  court  charged  the  jury  that  it  was  for  them  to  deter- 
mine whether  the  agency  of  Treadway  was  to  have  been  irre- 
vocable ;  whether,  for  deficiency  of  margin,  the  defendants  had 
authority  to  protect  themselves  by  buying  in  or  selling  with- 
out notice  to  the  plaintiff,  and  whether  the  defendants  con- 
sented to  the  revocation  of  Treadway's  authority  ;  and  that, 
if  they  should  find  with  the  plaintiff  on  these  points,  the  defend- 
ants were  obliged  to  obey  his  telegram  of  November  2d,  and 
for  omission  to  do  so  were  liable  in  damages  for  the  profit  to 
the  plaintiff  at  the  price  of  that  day  as  compared  with  the  price 
at  which  the  stock  had  been  sold  short. 

Exceptions  were  duly  taken  to  the  charge  and  the  several 
portions  thereof,  and  to  the  measure  of  damages  established. 

The  jury  rendered  a  verdict  for  plaintiff  for  $1,718.00,  and 


8  CASES  IN  THE  SUPREME  COURT  [Feb., 

White  v.  Smith. 

the  plaintiff  brought  this  appeal  upon  a  case  made  and  excep- 
tions taken. 

John  E.  Parsons,  for  the  appellant,  cited  Worth  v. 
Edmonds  (52  Barb.,  40) ;  Milton  v.  Hudson  R.  Steamboat 
Co.  (37  N.  Y.,  210) ;  Davis  v.  Shields  (24  Wend.,  322) ; 
Peterson  v.  Ayers  (13  C.  B.,  353) ;  Williams  v.  Reynolds 
(11  Jen.,  N.  S.,  793);  Powell  v.  Jessup,  18  C.  B.,  336 ;  Shaw 
v.  Holland  (15  M.  &  W.,  136) ;  F<m  Diemans  Land  Co.  v. 
Cockrell  (1  C.  B.,  N.  S.,  732) ;  Suydam  v.  ^4fe  (20  Wend., 

321) ;  Sedgwick  on  Dam.,  347  ;  Bell  v.  Cunningham  (3  Pet., 
69,  85). 

Reynolds  &  Ward,  for  the  respondents,  cited  Scott  v. 
Rogers  (31  N.  Y.,  684,  685);  Clarke  v.  Meigs  (10  Bos., 
337) ;  Le  Guen  v.  Gouveneur  (1  John.  Cas.,  436) ;  Milbank 
v.  Dennistoun  (1  Bosw.,  246) ;  Suydam  v.  Allen  (20  Wend., 
321) ;  .fifaww  v.  7?0<?i(  (3  Seld.,  156) ;  JBlot  v.  Boiceau  (3  Com., 
78) ;  Morris  v.  Sammond  (2  Wash.  C.  C.  R.,  203) ;  -£><?  :Zas- 
sett  v.  Cronsellatt  (2  id.,  132) ;  Rudle  v.  Moore  (3  Jac.,  36). 

Present — BAKNABD,  P.  J.,  GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  questions  of  fact  in  the 
case  were  presented  to  the  jury  in  a  charge  from  the  court,  to 
which  no  exception  was  taken,  and  which  was  free  from  legal 
objection.  The  only  questions  brought  up  for  review  are, 
whether  the  plaintiff  is  entitled  to  recover  at  all,  and,  if  he  is, 
what  is  the  rule  of  damages. 

The  defendants  are  stock-brokers,  doing  business  in  the 
city  of  New  York.  The  plaintiff  resides  in  St.  Louis.  In 
August,  1869,  he  was  in  the  city  of  New  York,  and  while 
there,  he  made  an  agreement  with  the  defendants,  whereby 
they  agreed  to  purchase  and  hold,  and  sell  stocks  for  him,  on 
the  security  of  a  margin  or  deposit,  for  the  usual  commission 
and  interest  on  the  advances  they  might  make  over  and  above 
the  margin.  At  first,  Mr.  Treadway,  a  resident  of  the  city  of 
New  York,  was  the  agent  of  the  plaintiff,  and,  as  such,  gave 


1871.1  OF  THE  STATE  OF  NEW  YORK.  9 

White  v.  Smith. 

orders  to  the  defendants,  and  transacted  the  plaintiff's  busi- 
ness with  them  ;  but  his  authority  had  been  revoked,  and  the 
defendants  notified  of  such  revocation,  before  the  transaction 
out  of  which  this  action  arose  occurred.  That  transaction 
was  a  purchase  on  the  1st  November,  1869,  of  300  shares  of 
stock,  to  cover  a  short  sale  of  the  same  stock,  made  by  the 
defendants  for  the  plaintiff  on  the  18th  October,  1869.  This 
purchase  was  no  doubt  made  by  the  defendants  in  good  faith,- 
under  an  apprehension,  arising  from  the  uncertain  and  fluctu- 
ating state  of  the  stock  market,  that  stocks  would  advance  in 
price,  and  thereby  the  plaintiff  would  be  subjected  to  loss. 
But  they  had  no  authority  from  the  plaintiff  to  make  the 
purchase.  The  sanction  given  to  it  by  Mr.  Treadway  in  no 
way  affected  the  plaintiff,  for  his  authority  had  been  revoked 
with  the  acquiescence  of  the  defendants.  After  this  revoca- 
tion, it  became  the  duty  of  the  defendants  to  await  the  orders 
of  the  plaintiff,  and  they  became  responsible  for  any  loss 
plaintiff  might  sustain  by  reason  of  a  violation  of  this  duty. 
The  plaintiff  might  adopt  an  unauthorized  transaction  made 
on  his  behalf,  and  thus  be  entitled  to  any  profit  accruing  from 
it,  but  his  right  to  repudiate  it,  and  cast  all  loss  occasioned  by 
it  on  the  defendants,  is  equally  clear.  These  principles  are 
essential  to  preserve  fidelity  in  agents,  and  are  well  settled  in  law. 

On  the  2d  November,  1869,  the  stock  having  declined,  the 
plaintiff  directed  the  defendants  to  cover  the  300  shares  which 
they  had  sold.  This  the  defendants  refused  to  do.  If  the 
defendants  had  not  made  the  unauthorized  purchase  on  the 
1st  November,  and  had  complied  with  this  direction,  the 
plaintiff  would  have  made  a  profit  on  the  transaction  in  ques- 
tion, amounting  to  the  sum  awarded  by  the  jury.  But  it  is 
said  that  the  defendants  are  not  under  an  obligation  to  act  for 
the  plaintiff,  either  for  any  fixed  period  or  to  any  definite 
amount.  We  think  the  rule  of  law  is  otherwise.  By  the 
agreement  by  which  the  agency  was  created,  no  period  was 
fixed  for  its  continuance,  and  the  only  limit  as  to  amount  was 
fixed  by  the  margin  or  deposit.  The  agency  was  not  revoked 
by  the  plaintiff.  It  could  not  be  revoked  by  the  defendants 

LAXSIXG — VOL.  VI.         2 


10      CASES  IN  THE  SUPREME  COURT    [Feb., 


White  v.  Smith. 


without  notice  to  the  plaintiff,  and  having  been  founded 
upon  a  valuable  consideration,  a  renunciation  of  the  agency 
by  the  defendants  would  have  subjected  them  to  a  liability 
for  any  damages  the  plaintiff  might  have  sustained  thereby. 
(Story  Ag,  §  478.) 

It  is  also  said  that  the  defendants  were  not  bound  to  make 
the  advance  requisite  to  make  the  purchase  ordered  by  the 
plaintiff,  because  they  might  demand  an  immediate  return  of 
the  sum  advanced,  and  that  no  loss  can  arise  from  a  failure  to 
lend  money,  to  an  immediate  return  of  which  the  lender  is 
entitled.  This,  also,  is  a  fallacy.  For  by  the  agreement  the 
defendants  were  to  make  the  necessary  advances,  and  to  be 
reimbursed  at  the  close  of  the  transaction.  Their  security 
was,  in  all  cases,  the  sum  deposited  with  them  by  the  plain- 
tiff, and  in  case  of  an  advance  to  make  a  purchase,  they  held, 
in  addition  to  such  deposit,  a  pledge  of  the  stocks  purchased. 

The  liability  of  the  defendants  was  fully  established,  and 
the  only  remaining  question  is,  what  is  the  measure  of  that 
liability  ?  It  is  evident  that  the  plaintiff  could  not  avoid  the 
loss  by  purchasing  the  stock,  and  delivering  it  himself  in 
fulfillment  of  the  contract  made  on  his  behalf  by  the  defend- 
ants, for  such  purchase  and  delivery  had  already  been  made 
by  the  defendants  themselves — the  contract  had  been  per- 
formed. Whether,  if  the  plaintiff  had  purchased  the  stocks, 
he  could  have  found  a  purchaser  for  them  at  the  price  for 
which  the  defendants  had  sold  them  is  conjectural.  The 
inference,  from  the  market  price  on  the  day  the  order  was 
given,  is  that  he  could  not.  But  the  complete  answer  is,  that 
he  had  a  right  to  rely  implicitly  upon  the  fidelity  of  his  agents. 

The  loss  resulting  directly  from  their  delinquency  was  the 
difference  between  the  price  they  paid  for  the  stocks  upon  the 
purchase  made  without  authority,  and  the  market  price  thereof 
at  the  time  they  were  instructed  to  make  the  purchase.  The 
verdict  of  the  jury  was  for  this  sum. 

The  judgment  and  order  denying  a  new  trial  must,  there- 
fore, be  affirmed,  with  costs. 

Judgment  affirmed. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 

Washburn  v.  Hubbarcl 


MONKOE  B.  WASHBURN,  Respondent,  v.   ALBERT   HUBBARD 
and  others,  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

Estimates  of  probable  sales  furnish  no  proper  criterion  for  fixing  damages 
actual  damages,  and  actual  loss  of  profits,  only,  can  be  recovered. 

Accordingly,  in  an  action  for  breach  of  a  contract  to  continue  the  plaintiff 
as  the  defendants'  agent  for  the  sale  of  car  springs,  and  allow  him  com- 
mission on  sales, — Held,  that  evidence  of  the  amount  of  profits  which 
might  have  been  made  during  the  term  of  the  contract,  based  upon  a  cal- 
culation of  the  probable  amount  of  sales  during  such  term,  was  inadmis- 
sible to  establish  the  plaintiff's  damages. 

THIS  was  an  appeal  by  the  defendants  from  a  judgment  in 
favor  of  the  plaintiff,  entered  upon  the  report  of  a  referee. 

The  action  was  for  damages  on  account  of  breach  of  con- 
tract. It  appeared,  upon  the  trial,  that  the  defendants,  who 
were  copartners,  and  engaged  in  the  manufacture  of  car 
springs,  at  Springfield,  Mass.,  under  the  firm  name  of  "  The 
Hubbard  Car  Spring  Company,"  entered  into  an  unwritten 
agreement  with  the  plaintiff,  on  the  first  of  January,  1869,  by 
which  the  plaintiff  agreed  to  become  their  general  agent  for 
selling  the  Hubbard  car  spring,  a  patented  article  under 
letters-patent,  running  for  seventeen  years,  from  March,  1866. 
By  this  agreement  the  plaintiff  obliged  himself  to  devote  a 
arge  portion  of  his  time  to  the  business  of  introducing  the 
springs  into  the  market  and  making  sales  of  them,  and  he  was  to 
advertise  the  springs  at  his  own  cost ;  the  defendants  promised, 
in  consideration,  to  constitute  and  continue  him  their  general 
agent,  for  sale,  upon  commission,  of  all  the  springs  which  they 
should  manufacture  under  their  letters-patent,  and  in  case  of 
their  disposal  of  the  manufacturing  business  or  letters-patent, 
or  any  rights  to  manufacture  thereunder,  or  of  then  allowing 
the  same  to  be  sold,  to  provide  that  he  should  still  remain  agent 
of  their  vendees  upon  the  same  terms.  The  contract  provided 
for  continuance  of  the  agency  during  the  whole  term  for 
which  the  letters-pattent  were  issued. 


12  CASES  IN  THE  SUPREME  COURT          [1872. 


Washburn  v.  Hubbard. 


It  further  appeared  that  in  September,  1869,  the  defend- 
ants, without  making  any  provision  for  a  continuance  of  the 
defendant's  agency  or  employment,  permitted  a  transfer  of 
letters-patent  under  which  they  acted  to  the  Union  Car 
Spring  Company,  and  it  was  for  this  violation  of  their  con- 
tract that  the  plaintiff  brought  his  suit,  he  having  performed 
all  his  part  of  the  agreement,  and  expended  money  and  time 
in  successfully  introducing  the  spring  into  market. 

The  defendants  moved  the  referee,  after  proof  of  the  con- 
tract to  strike  out  the  evidence,  as  showing  the  alleged  con- 
tract to  have  been  void  under  the  statute  of  frauds,  as  not 
capable  of  performance  within  one  year.  This  motion  was 
denied,  and  the  defendants  excepted. 

The  plaintiff,  in  proof  of  the  value  of  the  contract  for  the 
term  of  seventeen  years,  and  of  the  damage  which  he  had  sus- 
tained by  loss  of  the  privilege  provided  for  by  the  contract 
during  the  term  of  the  letters  patent,  offered  evidence  of  the 
amount  of  profits  which  might  have  been  made  during  the 
term,  based  upon  a  calculation  of  the  probable  amount  of 
sales  of  the  springs  during  that  time.  The  defendants  objected 
that  if  the  contract  should  be  held  to  be  valid,  damages  could 
not  be  allowed  for  its  breach  which  had  been  sustained  after 
commencement  of  the  action ;  that  no  claim  could  be  made 
for  damages  for  more  than  a  year  from  the  date  of  the  con- 
tract, and  that  only  actual  loss  could  be  recovered,  and 
claimed  that  the  proof  offered  was  speculative  and  inadmissi- 
ble. The  objections  were  overruled,  and  the  evidence  was 
admitted.  Exceptions  were  duly  taken  to  the  findings,  sus- 
taining the  contract  as  valid  and  allowing  damages  upon  the 
basis  of  prospective  profits. 

Smith  <&  Woodward,  for  the  appellants.  The  contract  was 
not  by  its  terms  to  be  performed  within  one  year,  and  was  not 
in  writing,  and  is  void.  (2  R.  S.,  p.  135,  ch.  7,  tit.  2,  §  2 ; 
JBroadwell  v.  Getman,  2  Denio,  87" ;  Wier  v.  If  ill,  2  Lans., 
2T8  ;  Dobson  v.  Collis,  37  Eng.  L.  and  Eq.,  499 ;  1  Smith's 
Leading  Cases,  part  1,  p.  543  ;  Halloway  v.  Hampton,  4  B. 


1872.]  OF  THE  STATE  OF  NEW  YORK.          •     13 


"Washburn  v.  Hubbard. 


Monroe,  415  ;  Harris  v.  Porter ',  2  Harrington,  27.)  The 
referee  erred  in  applying  the  rule  of  damages  as  laid  down 
in  Taylor  v.  Bradley,  39  IS".  Y.,  129 ;  Shannon  v.  Comstock  (2 
Wend.,  457 ) ;  Costigan  v.  Mohawk  and  II.  R.  R.  (3  Demo, 
609).  Also  in  admitting  evidence  of  profits,  which  were  specu- 
lative and  too  remote  to  form  a  proper  basis  of  calculation  in 
finding  the  amount  of  damages.  (Masterton  v.  The  Mayor, 
etc.,  of  Brooklyn,  7  Hill,  62  ;  Foy  v.  Harding,  7  Gush.,  516  ; 
Shannon  v.  Comstock,  2 1  Wend.,  457 ;  Schooner  Lively  v. 
Gamion,  1  Galison,  314,  315 ;  Blanchard  v.  Ely,  21  Wend., 
342.) 

Jno.  L.  Hill,  for  the  respondent,  cited  Peter  v.  Compton  (1 
Smith's  Leading  Cases  143) ;  Kent  v.  Kent  (18  Pick.,  569) ; 
Peters  v.  Wesiboro  (1$  id.,  364);  Blake  v.  Cole  (22  id.,  97); 
Roberts  v.  Rockbottom  Co.  (7  Met.,  46) ;  Clark  v.  Thompson  (20 
Conn.,  495) ;  McLees  v.  Hale  (10  Wend.,  426) ;  Plimpton  v. 
Curtiss  (15  id.,  336) ;  AUicotv.  Turner  (4  Md.,  476) ;  Howard 
v.  Bergen,  (4  Dana,  137) ;  Dresser  v.  Dresser  (35  Barb.,  573 ); 
Moore  v.  Fox  (10  Johns.,  244) ;  Artcher  v.  Zeh  (5  Hill,  20). 
As  to  the  measure  of  damages :  Taylor  v.  Bradley  (39  K.  Y., 
129) ;  Passinger  v.  Thorburn  (34  id.,  634) ;  Bagley  v.  Smith 
(10  id.,  489). 

Present — BAKNARD,  P.  J.,  GILBERT  and  TAPPED,  JJ. 

By  the  Court — GILBERT  J.  The  plaintiff  was  permitted  to 
give  evidence  "  of  the  amount  of  profits  which  might  have 
been  made  during  the  term  of  the  agreement  (seventeen  years), 
based  upon  a  calculation  of  the  probable  amount  of  sales  of 
car  springs  during  said  term,"  and  the  defendant  excepted. 
We  think  the  evidence  was  inadmissible,  and  the  finding  based 
thereon  erroneous.  Assuming  that  this  is  a  case  for  the 
application  of  the  rule  of  damages  adopted  by  the  referee,  the 
amount  thereof  should  have  been  ascertained  by  the  testimony 
of  witnesses  competent  to  express  an  opinion  on  the  subject. 
The  question  was,  what  was  the  value  of  the  contract  when 
the  breach  occurred  ?  The  form  of  proof  prescribed  in  the 


14  CASES  IN  THE  SUPREME  COURT          [1872. 

Washburn  v.  Hubbard. 

case  of  Taylor  v.  Bradley  (39  N.  Y.,  145)  is  the  same  which 
is  adopted  for  the  purpose  of  ascertaining  the  market  value 
of  goods  on  a  particular  day,  and  the  value  of  a  lease,  namely ; 
"  The  judgment  of  men  whose  knowledge  and  whose  experi- 
ence in  the  same,  or  like  matters,  enables  them  to  form  a 
judgment  on  the  subject."  The  court  in  this  case  also  say, 
"if  it  cannot  be  proved,  then  the  plaintiff  can  only  recover 
nominal  damages."  Estimates  of  probable  sales  furnish  no 
proper  criterion  for  fixing  damages.  Actual  damages  and 
actual  loss  of  profits  only  can  be  recovered.  (Bagley  v.  Smith, 
10  1ST.  Y.,  489.)  In  this  case  the  only  evidence  on  the  trial  on 
the  subject  of  damages,  was  the  amount  of  past  profits.  The 
court  instructed  the  jury  that  this  did  not  furnish  a  rule  of 
damages,  but  that  they  should  allow  for  the  fluctuations  o'f 
trade,  and  the  effects  of  competition,  and  that  the  amount 
thus  ascertained  was  subject  to  a  further  deduction  of  what- 
ever the  plaintiff  actually  made,  or  by  reasonable  diligence 
could  have  made,  during  the  period  for  which  the  recovery 
was  had.  These  instructions  have  been  approved  by  the 
appellate  court.  If  the  rule  of  damages  thus  established  is  to 
become  permanent,  great  strictness  should  be  observed  in 
applying  it.  Probable  value  or  profits  is  neither  a  precise  nor 
a  safe  basis  for  estimating  damages. 

For  this  error,  without  considering  the  other  questions 
involved,  the  judgment  must  be  reversed,  and  a  new  trial 
granted  at  the  Circuit,  with  posts  to 

Judgment  reversed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  15 

Kingsland  v.  Chittenden. 


AMBROSE  C.  KINGSLAND,  Eespondent,  -y/  Ltrcius  E.  CHITTEN- 
DEN and  others,  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

A  line  given  in  a  deed  as  running  from  one  monument  to  another,  is,  in 

the  absence  of  further  description,  presumed  to  be  a  straight  line. 
The  rule  which  carries  land,  bounded  upon  a  stream  or  pond,  to  the  middle 

thereof,  applies  only  where  the  grant  is  in  terms  bounded  on  the  stream 

or  pond  generally. 
It  is  founded  on  the  presumed  intent  of  the  grantor,  and  can  never  be 

applied  when  the  presumption  is  repelled  by  the  language  of  the  grant. 
A  map  made  for  the  owner  of  an  entire  tract,  and  referred  to  in  the  deeds 

of  parcels  thereof,  is  admissible  evidence  between  the  subsequent  grantees 

upon  a  question  as  to  their  boundaries. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment  for 
the  plain  tiff  upon  the  report  of  a  referee. 

The  action  was  ejectment  to  recover  lands  in  the 
defendants'  possession.  The  defendants  answered  jointly, 
denying  the  complaint  and  claiming  ownership  of  the  pro- 
perty described  therein. 

Plaintiff  and  defendants  traced  their  titles  to  Gerard  R. 
Beekman,  as  owner  of  an  entire  tract,  from  whose  executors, 
by  intermediate  conveyances,  it  had  been  granted  to  one 
Storm,  who  had  granted  portions  to  the  plaintiff  and  defend- 
ants respectively. 

It  appeared  upon  the  trial  that,  while  the  entire  tract  of 
land  which  contained  the  lands  granted  by  Storm  to  the 
plaintiff  and  defendants  respectively  was  owned  by  the 
estate  of  Gerard  R.  Beekman,  a  survey  had  been  made  by 
one  Carpenter,  a  surveyor  in  the  owner's  employ,  and  a  line 
dividing  an  artificial  mill-pond,  formed  by  a  dam  in  the 
Pocantico  river,  into  two  equal  parts,  had  then  been  located 
and  laid  down  on  a  map  of  the  tract  made  for  the  Beekman 
estate  ;  that  this  map  was  subsequently  used  in  the  office  of 
that  estate,  and  was  there  made  accessible  to  persons  desi- 
rous of  purchasing  therein,  and  that  it  was  accessible  to  and 
examined  by  one  Francis  Core  and  Gerard  R.  Beekman,  who 


16  CASES  IN  THE  SUPREME  COURT          [1872. 

Kingsland  v.  Chittenclen. 

became  purchasers  of  one  portion,  and  an  agent  acting  for  Ann 
Warner  who  became  purchaser  of  another  portion  of  the  tract, 
and  that  the  dividing  line  through  the  tract,  as  laid  down  on 
the  map,  had  in  fact  been  established  at  the  suggestion  of 
these  respective  grantees  from  the  Beekman  estate,  to  enable 
them  to  purchase  their  respective  portions  on  each  side  of 
such  line.  The  map  and  evidence  of  the  survey  and  location 
of  the  line  were  received  under  objection  as  to  materiality 
and  competency  and  exception  by  the  defendants. 

The  plaintiff  then  deduced  title  through  Core  and  Gerard  R. 
Beekman  and  one  Cramer  to  Storm,  and  from  Storm  to  him- 
self, of  one  portion  of  the  premises,  being  the  north  half 
thereof.  The  plaintiff's  deed  bore  date  May  1st,  1863,  and  con- 
tained a  description  of  the  premises  conveyed  and  covenants, 
which  are  referred  to  and  explained  in  the  opinion  of  the  court. 

It  appeared,  from  the  evidence  of  the  defendants'  witnesses, 
that  the  channel  or  thread  of  the  Pocantico  river  ran  con- 
siderably more  to  the  southward  than  the  line  laid  down  on 
the  map  as  the  dividing  line  through  the  pond,  though  in 
the  same  general  direction,  and  that,  following  the  course  of 
the  channel  of  the  river  as  a  boundary,  the  quantity  of  land 
belonging  to  the  plaintiff  under  his  deed  would  be  increased. 
It  was  also  shown  by  the  defendants  that,  after  Storm  became 
owner  of  the  property,  and  before  conveyance  to  the  plain- 
tiff, he  filled  up  a  portion  of  the  pond,  on  the  north  side,  to 
the  extent  of  half  an  acre  thereof,  and  thus  changed  the  out- 
line of  the  pond.  The  dispute  between  the  parties  regarded 
the  true  location  of  their  dividing  line  through  the  pond. 

L.  E.  Chittenden,  for  the  appellant,  cited  King  v.  King 
(7  Mass.,  495) ;  Wells  v.  Jackson  Iron  Co.  (47  K  H.  Rep., 
236) ;  Peaslee  v.  Gee  (19  id.,  126) ;  Nutting  v.  Herbert  (35 
id.,  126) ;  Greenleaf  v.  Kitton  (11  id.,  530) ;  Bradley  v.  Nil- 
son  (58  Maine,  359);  Comstock  v.  Van  Deusen  (5  Pick.,  163); 
Child  v.  Starr  (4  Hill.,  369);  Jackson  v.  Tile  (11  John., 
212) ;  Lovell  v.  Robinson  (16  Me.  R.,  357) ;  Bradley  v.  Eice 
(13  id.,  198) ;  Hathorn  v.  Stinson  (3  Fairf.,  181) ;  Hatch  v. 


1872.]  OF  TIIE  STATE  OF  NEW  YORK.  17 

Kingsland  t?.  Chittcnclen. 

Carpenter  (75  Mass.,  269) ;  Fletcher  v.  Plielps  (28  Vt,  262) ; 
Pratt  v.  Samson  (84  Mass.,  285) ;  Trustees  v.  Dickinson  (9 
Gush.,  544) ;  McCidloch  v.  JToK  (4  Rich.  S.  C.,  68) ;  Sizer  v. 
D  evening  (16  Barb.,  160) ;  Ex  parte  Jennings  (6  Cow.,  536, 
note) ;  Marsh  v.  .Zforrf  (34  Vt.,  39) ;  Riley  v.  £r(#m  (16 
Georgia,  141) ;  Zte>i  v.  Wright  (1  Pet.  C.  C.  Rep.,  71) ;  J0n<?s 
v.  Hohtein  (47  Barb.,  311);  Eerridge  v.  IFarrf  (10  Com. 
B.  R.  [N.  S.],  400) ;  Simpson  v.  Dendy  (8  Com,  B.  R. 
[N.  S.],  433) ;  Zo>'d  v.  Ow».  of  Sidney  (12  Moore  P.  C. 
Gas.,  473) ;  Cox  v.  Fredley  (33  Penn.  St.  R.,  124) ;  Demeyer 
v.  Z<?^  (18  Barb.,  14) ;  Herring  v.  .Z'Mtf/-  (1  Sanf.,  344) ; 
Hammond  v.  McLachlan  (id.,  335) ;  Zw<?0  v.  Carley  (24 
Wend.,  457) ;  Jackson  v.  Zcwo  (12  John.,  252) ;  Seneca 
Indians  v.  Knight  (23  N.  Y.,  498) ;  Dunham  v.  Williams 
(36  Barb.,  155) ;  Adams  v.  7?.  7?.  6T0.  (11  id.,  417) ;  Morgan 
v.  7iT%  (35  N.  Y.,  459) ;  TTa^A  v.  TFaw^A  (28  id.,  94) ; 
6Y«/-&  v.  TF^A«y  (19  Wend.,  320) ;  Lowell  v.  Robinson  (16 
Me.,  357) ;  Peaslee  v.  £*s  (19  N.  II.,  126) ;  Nutting  v.  Zfo/-- 
ie?-^  (35  id.,  126) ;  Cook  v.  Comley  (39  id.,  595) ;  Claremont 
v.  Carleton  (2  id.,  369) ;  Thayer  v.  J?#«w  (3  Allen,  163) ; 
Allen  v.  Kingsbnry  (16  Pick.,  235) ;  Comstock,  v.  T^n  Deu$en 
(5  Pick.,  163) ;  J5Tm^  v.  J^'n^r  (7  Mass.,  495) ;  Trustees  v. 
Dickenson  (9  Gush.,  544);  J/a/vA  v.  .Z?w;^  (34  Vt.,  29); 
Eussel  v  Maloney  (39  id.,  578) ;  McCidlock  v.  Fa«7  (4  Rich. 
S.  C.,  68) ;  Fralt  v.  Woodward  (32  Gal.,  219) ;  Smith's  Lead. 
Ca.,  11 ;  Hare  and  Wallace,  Notes,  226) ;  Riley  v.  Griffin.  (16 
Ga.  R.,  141) ;  Den  v.  Wright  (1  Pet.  C.  C.  R.,  71). 

J.  W,  Tompkins,  for  the  respondents,  cited  Washburn  on 
Real  Property,  672;  Bradley  v.  Rice  (13  Me.,  201;  13 
Pick.,  261) ;  Stanley  v.  Green  (12  Gal.,  162). 

Present — BARNARD,  P.  J.,  GILBERT  and  TAPPEN,  JJ, 

By  the  Court — GILBERT,  J.     The  determination  of  this 
case  depends  upon  the  construction  which  shall  be  given  tc 
LAXSIXG — VOL.  VI.          3 


CASES  IX  THE  SUPREME  COURT         [1872. 


7 

Kingsland  v.  Chittenden. 


tbe  deed  from  Jacob  Storms  and  wife  to  the  plaintiff,  dated 
May  1,  1863.  The  only  subject  in  dispute  is  the  south- 
eastern boundary  described  in  that  deed,  the  description  of 
which  is  as  follows :  "  Thence  south  to  the  center  of  the  mill 
creek  or  Pocantice  river,  thence  easterly  along  the  center  of  said 
creek  or  river  to  the  present  mill-dam  at  the  center  thereof, 
thence  through  the  center  of  said  mill-dam  and  the  center  of  the 
mill-pond  to  the  late  Highland  turnpike  road."  The  deed 
also  conveys  the  lands  covered  by  the  waters  of  that  portion 
of  said  mill-pond  thereby  conveyed,  as  the  same  wore  con- 
veyed to  the  said  Jacob  Storms  and  others  by  Francis  Core 
and  wife  by  deed,  dated  January  21,  1856.  The  deed  from 
Storms  and  wife  to  the  plaintiff  is  executed  by  the  grantee 
as  well  as  the  grantors,  and  contains  the  following  covenant : 
"  And  the  said  party  of  the  first  part  hereto  does  covenant 
and  agree  for  himself,  his  heirs  and  assigns,  that  he  nor  they 
will  not  at  any  time  hereafter  encroach  upon  the  couth- 
easterly  half  of  said  pond  still  owned  and  retained  by  him,  by 
walling,  filling  up  or  otherwise,  but  that  there  shall  be  pre- 
served at  all  times  in  said  south-easterly  half  of  said  pond  a 
water  surface  equal  to  the  surface  hereby  conveyed  to  the 
said  party  of  the  second  part ;  and  the  said  party  of  the  second 
part  does  hereby  in  like  manner  covenant  that  he  will  not  at 
any  time  in  anywise  encroach  upon  the  north-west  half  of 
said  pond  hereby  conveyed  to  him,  but  that  the  water  surface 
therein  shall  at  all  times  remain  equal  to  the  water  surface  in 
the  south-east  half  of  said  pond."  The  only  difficulty  in  the 
case  arises  from  the  omission  in  the  deed  of  any  words  point- 
ing out  the  course  of  the  line  running  through  the  pond,  and 
the  spot  where  that  line  meets  the  Highland  turnpike  road. 
These  particulars  not  being  ia  terms  defined  by  the  deed 
must  be  ascertained  by  applying  the  rules  governing  the 
interpretation  of  such  instruments,  which  are  these :  If  the 
language  of  the  instrument  is  susceptible  of  more  than  one 
construction,  the  intent  of  the  parties  to  be  collected  from 
the  whole  instrument  must  govern ;  and,  in  order  to  ascertain 
that  intent,  the  court  may  take  into  consideration  the  extrinsic 


1872.]  OF  THE  STATE  OF  NEW  YORK.  19 

Kingsland  v.  Chittenden. 

circumstances  attending  the  transaction,  the  situation  of  the 
parties  and  the  subject-matter  of  the  instrument.  This  is  the 
established  rule  of  the  common  law,  and  in  respect  to  con- 
veyances of  real  estate  has  been  declared  by  statute. 
(French  v.  Carhart,  1  Comst.,  102 ;  1  R.  S.,  748,  §  2.)  No 
evidence  to  contradict  the  instrument  can  be  admitted,  but 
evidence  for  the  purpose  of  explaining  it  is  sometimes 
admissible. 

Where  a  line  is  given  in  a  deed  as  running  from  one  monu- 
ment to  another,  it  is  always  presumed  to  be  a  straight  line, 
unless  a  different  line  is  described  in  the  deed,  so  that  by 
ascertaining  the  monuments  at  the  angles  of  a  parcel  of  land, 
the  boundary  lines  can  at  once  be  determined.  (Allen  v. 
Kingsbury,  16  Pick.,  238,  239  ;  Wash.  R.  P.,  631.)  In  this 
case  the  deed  to  the  plaintiffs  calls  for  a  line  running  from 
the  center  of  the  mill-dam  through  the  center  of  the  mill- 
pond  to  the  road.  The  direction  of  this  line  will  be  fixed 
when  it  is  ascertained  what  is  meant  by  the  words  "  through 
the  center  of  the  mill-pond,"  and  when  fixed  will  determine 
whether  the  locus  in  quo  is  embraced  within  it  or  not.  We 
think  the  deed  itself  furnishes  evidence  which  makes  it  reason- 
ably certain  that  the  parties  intended  a  line  which  should 
divide  the  water  surface  of  the  pond,  as  it  was  when  Core 
was  the  owner,  equally.  The  grantors  convey  the  lands  under 
water  as  the  same  were  conveyed  to  them  by  Core  and  wife, 
and  the  parties  mutually  covenant  in  substance  that  an  equal 
water  surface  shall  always  be  preserved  on  each  side  of  said 
line.  The  conveyance  from  Core  and  wife  to  Storms  was 
made  seven  years  before  the  deed  to  the  plaintiff.  Any  change 
in  the  pond,  produced  while  Storms  was  the  owner,  therefore, 
cannot  affect  his  grant  to  the  plaintiff.  The  line  in  question 
is  described  in  both  deeds  in  the  same  language.  The  deed 
from  Core  and  wife  to  Storms  also  conveys  the  lands  covered 
by  the  portion  of  the  mill-pond  thereby  conveyed.  It  further- 
more recites  an  agreement  between  the  parties  that  the  grant- 
ors are  to  sell  "  the  other  and  southerly  half  of  said  mill-pond,'' 
and  contains  a  mutual  covenant  that  the  owner  of  each  half 


20  CASES  IN  THE  SUPREME  COURT          [1 872 


Kingsland  v.  Chittenden. 


of  the  mill-pond  shall  bear  one-half  of  the  expense  of  main 
taining  the  dam,  and  shall  use  only  one-half  of  tho 
water  of  tho  pond.  The  deeds  under  which  the  defend 
ants  claim  title  all  contain  corresponding  provisions 
and  covenants  with  respect  to  the  northerly  half  of  the  pond, 
and  are  made  in  terms  subject  thereto.  It  would  be  extremely 
difficult  to  reconcile  the  language  used  in  these  deeds  with 
any  different  construction  than  that  which  we  have  expressed. 
The  correctness  of  this  construction  is  also  shown  by  the 
map  and  survey  put  in  evidence,  showing  the  actual  location 
of  the  line  through  the  pond.  This  map  was  made  for,  and 
is  mentioned  in  the  deeds  of  the  respective  parcels  from,  the 
former  owner  of  the  whole  premises  under  which  the  plaintiff 
and  defendants  respectively  derive  their  title,  and,  we  think, 
was  properly  received  in  evidence,  for  the  purpose  of  showing 
the  actual  location  of  that  line.  "  If  I.  S.  be  seized  of  the 
manors  of  A.  and  B.,  and  cause  a  survey  to  be  taken  of  B., 
and  afterward  convey  it  to  I.  N.,  and  after  disputes  arise 
between  the  lords  of  the  two  manors  concerning  the  bounda- 
ries, this  survey  may  be  given  in  evidence.  Aliter  if  the  two 
manors  had  not  been  in  the  same  hands  at  the  time  of  the 
survey  taken."  (B.  N.  P.,  283  ;  1  Gr.  Ev.,  §  189 ;  JSridgman 
v.  Jennings,  1  Ld.  Raym.,  734;  Dw  dem.  Hughes  v.  Lakin, 
7  C.  &  P.,  481.) 

The  rule  contended  for  by  the  counsel  for  the  defendants, 
that  a  grant  of  land  bounded  upon  a  stream  extends  to  the 
middle  thereof,  has  no  application  to  this  case.  That  rule  can 
be  applied  only  when  the  grant  is  in  terms  bounded  upon  the 
pond  or  the  stream  which  runs  through  it  generally.  In  such 
a  case,  it  will  be  extended  to  the  center  or  thread  of  the  stream. 
But  such  rule,  being  founded  upon  the  presumed  intention  of 
the  grantor,  can  never,  even  in  such  a  case,  be  applied  when 
such  presumption  is  repelled  by  the  language  used  in  the  con- 
veyance. (Child  v.  Starr,  4  Hill,  373  ;  Herring  v.  Fisher,  1 
Sand.  S.  C.  K.,  348 ;  id.,  323 ;  Bissell  v.  N.  Y.  C.  R.  It.  Co.,  23 
N.  Y.  R.,  64 ;  Bradley  v.  Rice,  13  Me.,  201.)  In  the  case  before 
us,  as  we  have  seen,  there  is  no  boundary  on  the  pond  generally, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  21 

Hincken  v.  The  Mutual  Benefit  Life  Insurance  Co. 

but  the  line  through,  the  pond  is  to  run  straight  from  the  dam 
to  the  road,  and  necessarily  excludes  any  intention  of  the 
grantor  that  it  should  follow  the  course  or  channel  of  the 
stream.  Such,  evidently,  was  the  view  of  the  subject  taken 
by  the  defendants  themselves,  at  the  time  the  deeds  to  them 
respectively  were  made,  for  in  those  deeds  the  line  through 
the  pond  is  in  terms  described  as  a  straight  line.  The  evidence 
shows  that  the  line  established  by  the  referee  is  in  accordance 
with  the  construction  which  we  have  given  to  the  deed  to  the 
plaintiff,  or  at  least  that  such  line  does  not  encroach  on  the 
southerly  half  of  the  pond.  It  cannot  be  doubted  that  it  was 
competent  to  prove  this  fact  by  parol  evidence.  (1  Gr.  Ev., 
§  301.)  It  is,  therefore,  immaterial  whether  the  referee  was 
right  or  wrong  in  admitting  the  parol  testimony  to  which  the 
defendants  objected,  or  in  the  process  of  reasoning  by  which 
lie  formed  his  conclusions  upon  the  whole  evidence  ;  for  such 
errors  are  only  presumptively  injurious,  and  when  it  appears 
on  an  examination  of  the  whole  case  that  the  result  ought  to 
have  been  the  same  if  the  errors  had  not  been  committed,  the 
errors  furnish  no  ground  for  reversing  the  judgment.  (People 
v.  Gonzalez,  35  N.  Y.,  59.) 

The  judgment  therefore  must  be  affirmed,  with  costs. 

Judgment  affirmed. 


EDWARD  HINCKEN  and  others,  Executors,  etc.,  of  Peter  Rice, 
Respondents,  «.  THE  MUTUAL  BENEFIT  LIFE  INSURANCE 
COMPANY*,  Appellant. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

The  agreement  in  life  policies  of  insurance  to  pay  within  a  time  after  due 
notice  and  proof  of  interest  and  death,  does  not  impose  the  performance 
of  a  condition  precedent  upon  the  owner  of  the  policy. 

And  on  the  trial  of  an  action  to  recover  the  insurance,  evidence  of  notice 
and  proof  given  is  only  necessary  as  establishing  that  the  time  of  pay- 
ment fixed  by  the  policy  has  elapsed. 

Where  preliminary  proofs  have  been  delivered  to  the  insurer  a  sufficient 


22  CASES  IN  THE  SUPREME  COURT         [1872. 

Hincken  «.  The  Mutual  Benefit  Life  Insurance  Co. 

time  before  suit,  and  no  objections  to  them  are  shown,  prima  fade  the 
proofs  are  sufficient. 

Non-production  upon  the  trial,  by  the  insurer,  of  the  proofs  shown  to  have 
been  given,  is  evidence  that  no  objection  to  them  exists. 

THIS  was  an  appeal  from  a  judgment  entered  upon  the  ver- 
dict of  a  jury  in  favor  of  the  plaintiff.  The  facts  are  stated 
in  the  opinion. 

Almn  C.  Bradley,  for  the  appellant.  Due  notice  and 
proof  of  interest  and  of  the  death  was  a  condition  precedent 
to  the  right  of  action.  (Hanley  v.  Wood,  6  Term.,  710; 
Irving  v.  Excelsior  2ns.  Co.,  1  Bosw.,  517,  523 ;  Parker  v. 
Phcenix  Ins.  Co.,  8  J.  R.,  307  ;  Lawrence  v.  Ocean  Ins.  Co., 
11  id.,  242 ;  Child  v.  Sun  Mutual  Ins.  Co.,  3  Sand.,  26  ; 
Campbell  v.  Charter  Oak  Ins.  Co.,  92  Mass.,  213.)  The 
remedy,  if  a  negative  pregnant  existed  in  the  answer, 
was  by  motion.  (  Wells  v.  Buffalo  Water-works,  18  N.  Y., 
119.)  To  remove  the  objection  of  want  of  due  proof,  subse- 
quent production  of  actual  proof  by  one  or  the  other  party 
was  essential,  and  it  must  have  been  such  as  would  have 
originally  established  due  proof  by  the  plaintiffs.  (Jackson 
v.  Leggett,  7  Wend.,  377 ;  Colvin  v.  Burnett,  2  Hill,  620  ; 
Schenectady  and  S.  Plk.  R.  Co.  v.  Thatcher,  UN.  Y.,  102  ; 
Lansing  v.  VanAlstyne,  2  Wend.,  561 ;  Barrickv.  Austin, 
21  Barb.,  241.) 

D.  T.  Walden  and  G.  G.  Reynolds,  for  the  respondents, 
npon  the  question  of  pleading,  cited  1  Chit.  PI.  (8  Amer.  ed.r 
614);  2  Sand.,  207,  n.  24;  319,  n.  6;  1  id.,  268,  269,  n.  2; 
Code,  §  168  ;  Young  v.  Catlett  (6  Duer,  444) ;  Arthur  v. 
Brooks  (14  Barb.,  533,  535) ;  Wood  v.  Whitney  (21  Barb., 
190) ;  West  v.  Am.  Ex.  Bank  (44  Barb.,  175, 179) ;  Bates  v. 
Rosekrans  (23  How.  Pr.  R.,  98) ;  Beach  v.  Bay  State  Co. 
(10  Abb.,  716) ;  Cruger  v.  Ilud.  R.  R.  Co.  (12  N.  Y.,  201). 
The  necessary  evidence  was  given  before  close  of  the  case. 
(Schenectady  &  S.  Plk.  R.  Co.  v.  Thatcher,  11  N.  Y.,  102.) 
Defendants  waived  objection  to  the  proofs  by  silence,  and 
should  have  produced  them.  (/Etna  Ins.  Co.  v.  Tyler,  16 


1872.]  OF  THE  STATE  OF  NEW  YORK.  23 

Hincken  v.  The  Mutual  Benefit  Life  Insurance  Co. 

Wend.,  402  ;  (TNeil  v.  The  Buffalo  Ins.  Co.,  3  N.  Y.,  122, 
128  ;  Kernochan  v.  Bowery  Ins.  Co.,  17  id.,  428 ;  Vos  \. 
Robinson,  9  John.,  192,  196 ;  Philips  on  Ins.,  §  1813.) 

Present — BARNARD,  P.  J.,  GILBERT  and  TAPPAN,  JJ. 

By  the  Court — GILBERT,  J.  The  action  is  upon  a  policy 
of  lite  insurance.  The  complaint  alleges  that  the  defendant, 
by  a  policy,  insured  the  life  of  Peter  Rice  in  the  sum  of 
$10,000,  and  agreed  to  pay  that  sum  to  his  "  executors,  admin- 
istrators or  assigns  within  ninety  days  after  due  notice  and 
proof  of  interest,  and  of  the  death  of  said  Peter  Rice." 

It  avers  the  death  of  said  Rice,  and  that  the  plaintiffs  are 
the  executors  of  his  will,  and  then  the  plaintiffs  further  aver 
"that  due  notice  and  proof  of  the  death  of  said  Peter  Rice 
and  the  interest  of  these  plaintiffs  was  given  to  the  defend- 
ant, by  these  plaintiffs,  on  or  about  the  18th  day  of  Septem. 
ber,  1866." 

The  answer  admits  that  the  policy  was  issued,  sets  forth 
matter  in  avoidance  of  it,  and  then  follow  these  words : 
"  Due  notice  and  proof  of  the  death  of  said  Peter  Rice  and  tho 
interest  of  the  plaintiffs  was  not  given  the  defendant  on  or 
about  the  18th  day  of  September,  1866 ;  but  it  is  admitted 
that  the  plaintiffs  are  executors,  as  stated  in  the  complaint." 

The  defendant  then,  except  as  before  stated,  denies  each 
and  every  allegation  in  the  first  and  second  paragraphs  of  the 
complaint. 

At  the  trial  the  plaintiffs  read  in  evidence  the  policy, 
proved  the  death  of  Peter  Rice,  arid  that  verbal  notice  thereof 
was  given  to  the  defendant  about  two  weeks  after  he  died, 
by  Mr.  Williamson,  the  business  partner  of  the  deceased  at 
the  time  of  his  death,  and  rested. 

The  defendant  moved  for  a  nonsuit,  because  the  plaintiffs 
did  not  furnish  the  proofs  of  the  death  as  required  by  tho 
policy,  and  no  proper  notice  of  the  death  had  been  given. 

The  motion  was  denied,  and  the  defendant  excepted. 

The  defendant  then  recalled  the  plaintiff's  witness  and 


24  CASES  IN  THE  SUPREME  COURT          [1872. 

Hincken  v.  The  Mutual  Benefit  Life  Insurance  Co. 

proved  by  him  that  he  delivered  the  preliminary  proofs  at 
the  office  of  the  company  in  August,  18G6,  and  thereupon 
moved  for  a  dismissal  of  the  complaint  on  the  ground  that 
plaintiffs  were  bound  to  produce  in  evidence  the  proofs 
received,  or  some  proofs  furnishing  due  proof  of  Rice's  death 
ninety  days  before  suit  brought.  The  court  overruled  the 
motion,  and,  no  further  evidence  having  been  offered,  directed 
a  verdict  for  the  plaintiffs. 

If  the  case  of  Watt  v.  Buffalo  Water-works  (18  N.  Y.  R., 
119)  had  not  been  brought  to  our  notice,  we  would  have  held 
that  the  answer  in  this  case  did  not  put  in  issue  the  averment 
in  the  complaint,  that  due  notice  and  proof  of  the  death  of 
the  assured  and  the  interest  of  the  plaintiffs  were  given,  but 
merely  denied  that  such  notice  and  proof  were  given  at  the 
time  alleged.  Such  was  the  rule  of  construction  applied  to 
pleadings  like  this  before  the  passage  of  the  Code  of  Pro- 
cedure (Gould's  PI.,  chap.  6,  §§  31-33.),  and  we  think  the 
same  rule  ought  still  to  be  applied.  But  assuming  that  the 
plaintiffs  were  bound  to  prove  due  notice  and  proof  of  the 
death,  and  of  their  interest,  we  are  of  opinion  that  the  evi- 
dence given  was  sufficient,  prima  facie,  to  establish  both  these 
facts.  The  evidence  was  not  necessary  for  the  purpose  of 
proving  a  performance,  by  the  plaintiffs,  of  a  condition  pre- 
cedent. The  clause  of  the  policy  in  question  did  not  impose 
any  such  condition  on  them.  The  evidence  was  material  only 
to  show  that  the  time  of  payment  fixed  by  the  policy  had 
elapsed.  The  answer  admitted  that  Rice  died  July  23d,  1866. 
The  witness  Williamson  testified  that  he  verbally  gave  notice 
of  the  death  of  Rice,  and  who  his  executors  were,  at  the  office 
of  the  company,  to  a  person  who  .seemed  to  be  in  authority 
there,  about  two  weeks  after  he  died.  All  that  remained  to 
be  done  by  the  plaintiffs  then  was  to  show  that  due  proof  of 
interest  and  of  the  death  had  been  furnished.  It  was  proved 
by  the  defendant  itself  that  preliminary  proofs  were 
delivered  in  August,  1866,  at  the  office  of  the  company.  !NTo 
objection  appears  ever  to  have  been  taken  to  these  proofs. 
They  were  in  the  possession  of  the  defendant.  The  non- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  25 

Barclay  v.  The  Quicksilver  Mining  Co. 

production  of  them  is  satisfactory  evidence  that  no  valid 
objection  to  them  existed. 

If,  therefore,  the  judge  erred  in  refusing  a  nonsuit,  the 
error  was  cured  by  the  defendant  supplying  the  evidence 
needed.  A  judgment  will  not  be  reversed  for  an  erroneous 
refusal  to  nonsuit  where  the  defect  in  the  evidence  is  sup- 
plied by  either  party  during  the  trial. 

The  judgment  should  be  affirmed,  with  costs. 


RICHARD  D.  BARCLAY,  Sequestrator,  &c.,  of  The  Quicksilver 
Mining  Company,  Respondent,  v.  THE  QUICKSILVER  MIN- 
ING COMPANY,  Appellant. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  JULY,  1872.) 

Objection  to  the  plaintiff's  capacity  to  sue  must  be  by  answer,  unless  the 
complaint  shows  an  absence  of  such  capacity. 

One  who  stands  in  the  position  of  an  assignee  for  non-resident  creditors, 
under  foreign  appointment,  may  sue  here  to  avoid  a  transfer  by  his  pre- 
decessor in  title,  fraudulent  against  the  cestuis  que  trust,  without  showing, 
by  his  complaint,  authority  under  the  foreign  laws  to  maintain  the  action ; 
and,  it  seems,  although  forbidden  by  the  foreign  laws. 

It  seems  that  receivers  or  trustees  of  foreign  corporations  may  sue  to  recover 
property  situate  in  this  State,  subject  to  the  qualification  that  the  foreign 
••  law  shall  not  divest  the  title  fairly  acquired  of  citizens  here. 

Accordingly  held,  that  a  complaint  by  the  sequestrator  of  a  corporation, 
showing  his  due  appointment  under  the  laws  of  Pennsylvania,  and  seek- 
ing recovery  of  property  of  the  foreign  corporation  fraudulently  conveyed 
to  a  corporation  here,  no  citizen  of  this  State  appearing  to  be  interested 
as  creditor,  &c.,  was  not  demurrable  for  the  plain  tiff's  lack  of  capacity 
to  sue. 

It  is  sufficient  if  the  complaint  contain  a  substantial  averment  of  the  plain- 
tiff's ownership  of  the  estate,  without  setting  forth  the  laws  under  which 
he  became  entitled. 

THIS  was  an  appeal  from  an  order  of  Special  Term,  over- 
ruling a  demurrer  to  the  complaint. 

The  substantial  facts  stated  in  the  complaint  were  :  That  in 
LANSING — VOL.  VI.         4 


26  CASES  IX  THE  SUPREME  COURT          [July, 

Barclay  v.  The  Quicksilver  Mining  Co. 

February,  1867,  the  State  of  Pennsylvania  commenced  an 
action  in  the  Court  of  Common  Pleas,  of  Dauphin  county, 
of  that  State,  against  the  Quicksilver  Mining  Company,  a  cor- 
poration created  under  its  laws,  and  doing  business  therein 
upon  an  indebtedness  of  the  defendant  to  the  State 
in  the  sum  of  $27,112.25,  with  interest ;  that  the  defendant 
therein  appeared  in  the  action  by  attorney,  and  such  proceed- 
ings were  had  that  judgment  was  entered  against  the  defend- 
ant for  $28,139,  and  costs. 

That  an  execution  against  property  was  duly  issued  on  the 
judgment  to  the  sheriff  of  Philadelphia  county,  in  Pennsyl- 
vania, which  was  soon  after  returned  nulla  ~bona.  That 
thereupon  the  plaintiff  in  that  action  presented  a  petition  to 
the  same  court  to  sequester  the  property  and  effects  of  the 
defendant,  and,  in  pursuance  of  and  in  conformity  with  the 
laws  of  Pennsylvania,  the  court  granted  the  petition,  and  the 
plaintiff  in  this  action  was  appointed  a  sequestrator,  and  duly 
qualified  as  such.  That  by  virtue  of  his  appointment,  and 
under  and  by  virtue  of  the  laws  of  Pennsylvania,  the  plaintiff 
became  and  was  entitled  to  the  capital  stock  of  the  Quicksil- 
ver Mining  Company,  the  defendant  in  the  judgment,  and 
all  its  property  and  effects,  and  all  it  had  assumed  to  transfer 
to  defraud  the  State  of  Pennsylvania,  or  the  plaintiff  as  such 
sequestrator,  for  the  purpose  of  satisfying  said  judgment  and 
costs.  That  the  Quicksilver  Mining  Company,  the  defendant 
in  the  judgment,  made  application  to  and  procured  of  the 
legislature  of  the  State  of  New  York  "  An  act  to  incorpo- 
rate the  Quicksilver  Mining  Company,"  which  was  approved 
the  10th  of  April,  1866.  That  in  February,  1867,  the  Quick- 
silver Mining  Company  of  Pennsylvania  transferred  the  pro- 
perty and  effects  of  that  corporation  to  the  Quicksilver  Min- 
ing Company  of  New  York,  and  since  the  1st  of  April,  1867, 
all  the  business  of  the  former  corporation,  as  well  as  of  the  new 
corporation,  had  been  transacted  under  the  new  corporation. 
That  the  act  of  incorporation  passed  by  the  legislature  of 
New  York  was  obtained  for  the  purpose  of  making'the  stock- 
holders of  the  old  corporation  a  new  corporation,  and  trans- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  27 

Barclay  v.  The  Quicksilver  Mining  Co. 

ferring  to  the  latter  all  the  property,  effects,  stocks  and  inte- 
rests of  thfl  former,  which  purpose  had  been  carried  out  and 
executed,  whereby  the  old  corporation  was  divested  of  all  its 
property,  &c.,  and  ever  since  had  been  and  was  destitute  of 
any  property  or  effects,  and  insolvent,  excepting  as  the  credi- 
tors of  the  old  corporation  might  impeach  those  acts  for  the 
satisfaction  of  their  debts.  That  the  transfer  was  wholly  volun- 
tary, and  without  any  consideration  whatever.  That  since  the 
appointment  of  the  plaintiff  as  sequestrator,  he  had  demanded 
of  the  new  corporation,  the  defendant  inthis  action,  the  property 
so  fraudulently  transferred  to  it,  for  the  payment  of  the  judg- 
ment, &c.,  with  which  the  defendant  had  refused  to  comply. 

That  the  act  incorporating  the  defendant  was  obtained,  and 
the  transfer  of  its  property,  &c.,  by  the  old  corporation  to  the 
defendant,  and  all  proceedings  relating  thereto  were  taken 
and  done,  with  intent  to  hinder,  delay  and  defraud  the  State 
of  Pennsylvania,  &c.,  creditors,  as  aforesaid.  That  the  reme- 
dies in  the  State  of  Pennsylvania  for  the  collection  of  the 
indebtedness  had  been  exhausted.  And  the  plaintiff  prayed 
judgment,  that  the  transfer  of  the  property  of  the  old  to  the 
new  corporation,  the  defendant  herein,  might  be  adjudged 
fraudulent  and  void  as  to  the  State  of  Pennsylvania,  creditor, 
as  aforesaid,  and  the  plaintiff  as  sequestrator,  and  set  aside. 

That  the  defendant  might  account  to  the  plaintiff  for  the  pro- 
perty, etc.,  and  all  avails  or  proceeds;  also  for  an  injunction 
against  the  disposition  thereof,  &c.,  and  like  restraint  during 
the  litigation,  for  a  receiver  and  for  general  relief. 

The  grounds  of  demurrer  were  : 

1.  That  the  plaintiff  has  not  legal  capacity  to  sue.  2.  That 
the  complaint  did  not  state  facts  sufficient  to  constitute  a 
cause  of  action. 

Daniel  T.  Walden,  for  the  appellant.  The  plaintiff  has 
not  legal  capacity  to  sue.  He  is  but  an  officer  of  the  court 
by  which  he  is  appointed,  and  his  power  is  for  the  limited 
purpose  of  satisfying  its  judgment ;  it  does  not  extend  beyond 
the  limits  of  his  State.  (2  Daniels'  Ch.  Pr.  [Am.  ed.],  1258; 


28  CASES  IN  THE  SUPREME  COURT  [July, 

Barclay  v.  The  Quicksilver  Mining  Co. 

2  id.  [4  Eng.  ed.],  part  1,  950 ;  1  Newland  Ch.  Pr.,  385 ;  1 
Barb.  Ch.  Pr.,  70 ;  1  Hoffman  Ch.  Pr.,  145,  &c.;  Bedar  v. 
Turnpike.  Co.,  14  Perm.  [2  Harris],  165, 166.)    His  power  docs 
not  extend  beyond  the  State  of  Pennsylvania.     (1  Story  on 
Confl.  Laws,  §§  499,  504;  Kraft  v.  Vickey,  4  Gill  &  John., 
33 ;  4  Cowen,  529,  note ;  Monell  v.  Dickey,  1  John.  Ch.,  153, 
156 ;    Williams   v.   Starrs,   6   id.,  353 ;  Rogers  v.  McLean, 
31   Barb.,   304,   310;    Guest  v.   Forehand,   36   Miss.,   69; 
Doolittle  v.  Lewis,  7  John.  Ch.,  153 ;  Parsons  v.  Lyman,  20 
N.  Y.,  112 ;  Dixon,  Ex'r,  v.  Ramsey,  Etir,  3  Cranch,  324 ; 
Hope  Insurance  Co.  v.  Taylor,  2  Robt.,  279,  284 ;  Booth  v. 
<7<for/b,  17  How.  U.  S.  K.,  322 ;  Lombard  Bank  v.  Thorp, 
6  Cow.,  41 ;  Runk  v.  St.  John,  29  Barb.,  585  ;  Hoyt  v.  Thomp- 
son, 5  K  Y.,  320;  19  id.,  225,  226;  Mosselman  v.  Caen, 
34  Barb.,  66 ;  Middleton  v.  Merchants'  Bank,  24  How.  Pr., 
267;    Petersen  v.  Chemical  Bank,  32  N.  Y.,  21,  40,  41.) 
The  question  is  properly  raised  by  demurrer.     (Robbins  v. 
Wells,  18  Abb.,  191.)   The  complaint  does  not  state  facts  suffi- 
cient to  constitute  a  cause  of  action.    (Phinney  v.  Phinney,  17 
How.,  197,  199  ;  Throop  v.  Hatch,  3  Abb.,  23 ;  1  Chitty  PI. 
[8  Am.  ed].  216  ;  Walker  v.  Maxwell,  1  Mass.,  103 ;  Pear  sail 
v.  Dwight,  2  id.,  34 ;  Sheldon  v.  Hopkins,  7  AVend.,  435 ; 
Pfo«  v.  Crawford,  1  Abb.  [N.  S.],  304  ;  Holmes  v.  Brough- 
ton,  10  Wend.,  75 ;  Monroe  v.  Douglass,  N.  Y.,  447,  451 ; 
Louisville  cfc  Charleston  R.  R.  Co.  v.  Selson,  2  How.  [U.  S.], 
497  ;  Crowley  v.  Panama  R.  R.  Co.,  30  Barb.,  99 ;  Merrick. 
v.  y<m  Santvoord,  34  N.  Y.,  215 ;  Stevens  v.  Phoenix  Ins. 
Co.,  41  id.,  149,  152,  153;  ^'s&  v.  TA«  Chicago  R.,  &c., 
R.  R.  Co.,  53  Barb.,  472;  #03^  v.  Thompson,  5  N.   Y., 
350,    351,    and    19    N.   Y.,   225;    Alraham    v.    Plestoro, 

3  Wend.,      538;      Johnson     v.    Zhmrf,    23     id.,    87,    90, 
91;    £><?    JTi#  v.    Burnet,    3   Barb.,    89,   96;     Willetts  v. 
TF/u'te,  25  N.  Y.,  583,  584,  587;  /&m'A  v.  Spinola,  2  John., 
198;  ,&'c<m2  v.  Whale,  11  id.,  194;   3  Cranch,  323;  Neu- 
stadt  v.  «7o£/,  2  Duer,  530,  531 ;  Greenwood  v.  Brodhead, 
8  Barb.,  593,  596,  597 ;    Corning  v.   TFAife,  2  Paige,  567 ; 

v.  J?mc<?,  4  id.,  309 ;  Dunlcvy  v.  Tallmadge,  32  N.  Y., 


1872.]  OF  THE  STATE  OF  NEW  YORK.  29 

Barclay  v.  The  Quicksilver  Mining  Co. 

457-459,  460,  461 ;  Willets  v.  Vandcnburgli,  34  Barb.,  424; 
Story  on  Confl.,  §  609;  McElmoyle  \.  Cohen,  Adm'r,  13 
Peters,  312,  328,  329 ;  Cameron  v.  Wentz,  4  McCord  Rep., 
278 ;  Southed  v.  Tompkins,  2  Eng.  Cas.  Ab.,  381 ;  Seals  \. 
Guernsey,  8  John.,  446,  452;  Code,  §  220;  1  Laws  1S70.  p. 
422,  §  3 ;  Hunt  v.  Johnson,  44  K  Y.,  27.) 

Theron  R.  Strong,  for  the  respondent.  That  it  is  clear, 
upon  the  statements  of  the  complaint,  that  the  creditors  can 
follow  the  property  and  its  proceeds:  Booth  v.  Bunce  (33 
N.  Y.,  139) ;  McCartney  v.  Bostwick  (32  id.,  53,  57,  58,  60, 
62) ;  Thomas  v.  The  Merchants'  Bank  (9  Paige,  216) ;  Rail- 
road Co.  v.  Wallace  (393, 409).  That  the  plaintiff  was,  in  equity, 
as  owner  of  the  property  of  the  old  corporation,  entitled  to  call 
upon  the  defendant  for  it  and  its  proceeds  for  payment  of  the 
judgment,  and  his  title  is  fully  alleged.  (Seymour  v.  Slurges, 
26  N.  Y.,  134,  and  cases  there  cited;  1  Seld.,  447;  46 
Barb.,  272;  2  Abb.  Dig.,  title  Foreign  Laws.)  The 
plaintiff  had  legal  capacity  to  sue.  (Runk  v.  St.  John, 
29  Barb.,  585 ;  Iloyt  v.  Thompson,  1  Seld.,  320,  341 ;  Iloyt 
v.  Thompson,  19  Y.  Y.,  207, 226  ;  Willetts  v.  Waite,  25  N.  Y., 
577;  Petcrsen  v.  The  Chemical  Bank,  32  id.,  21,  42-44, 
49-53;  Parsons  v.  Lyman,  20  id.,  103;  Hooker  v.  Tucker- 
man,  3  Sandt'.,  311 ;  Abraham  v.  Plestoro,  3  "Wend.,  551 ; 
Bird  v.  Pierrepont,  1  Johns.,  118 ;  Bird  et  al.  v.  Carilal, 
2  id.,  342 ;  Purdon's  Dig.,  200,  §  46 ;  id.,  542,  §  42  ;  5  Harris, 
Penn.  St.  R.,  Ill ;  3  id.,  385  ;  2  Wheaton,  240,  385 ;  9  Barr, 
355 ;  3  Harris,  385  ;  9  N.  Y.  R.,  142 ;  3  id.,  631 ;  40  id.,  384 ; 
Beeler  v.  Turnpike  Co.,  14  Penn.  St.  R. ;  Bevan  v.  Turnpike 
Co.,  10  Barr,  179,  490,  592 ;  Turnpike  Co.  v.  McAnulty,  4 
W  &  S.,  293  ;  Turnpike  Co.  v.  Peddle,  4  Barb.,  490,  492 ; 
Turnpike  Co.  v.  Wallace,  8  Watts,  318,  319 ;  Large  v.  Bristol 
Trans.  Co.,  2  Ashmead,  404;  5  Phila.  R.,  149;  Wesley 
Church  v.  Moore,  10  Barr,  281;  Code,  §  113.)  That  the 
complaint  sets  forth  sufficiently  plaintiffs  right  in  the  pro- 
perty :  1  Abb.  Pr.  and  PI.,  334,  335,  and  notes ;  Foot  v. 
Stevens  (17  Wend.,  483) :  Hatcher  v.  Rochleau  (18  N.  Y.,  95) ; 


80  CASES  IN  THE  SUPREME  COURT          [July, 

Barclay  v.  The  Quicksilver  Mining  Co. 

Kundolf\.  Thalbeiner  (17  Barb.,  506) ;  The  People  ex  rel. 
Crane  v.  Ryder  (12  N.  Y.?  433  ;  Code,  §  160);  Sere  v.  Coit  (5 
Abb.  Pr.,  482) ;  Platt  v.  Stout  (14  id.,  178, 183) ;  Prindlev. 
Caruthcrs  (15  N.  Y.,  425) ;  Walter  v.  Lockwood  (23  Barb., 
233).  lie  also  cited  upon  the  question  of  the  plaintiffs 
power  and  title  under  the  appointment  alleged :  1  Barb. 
Ch.  Pr.,  70 ;  2  Daniels'  Ch.  Pr.,  4th  ed.,  part  1,  950,  951 ;  1 
New.  Ch.,  689 ;  17  How.  U.  S.,  338 ;  34  Barb.,  66 ;  5  N.  Y., 
350 ;  19  id.,  207, 224-226 ;  3  Barb.,  89, 90 ;  6  Hill,  526 ;  7  Johns. 
Ch.,  45  ;  32  K  Y.,  21 ;  Abb.  Dig.  L.  of  Corp.,  290,  296  ;  42 
N.  Y.,  26  ;  Barclay  v.  Quicksilver  Mining  Co.  (9  Abb.  Pr. 
[N.  S.],  283) ;  Cutler  v.  Wright  (22  N.  Y.,  474,  475) ;  Bradley 
v.  Mutual  Benefit  Life  Ins.  Co.  (3  Lfins.,  345). 

Present — BARNARD,  P.  J.,  GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  first  ground  of  demurrer, 
namely,  that  the  plaintiff  has  no  legal  capacity  to  sue,  cannot 
be  -sustained,  unless  it  appears  on  the  face  of  the  complaint 
that  he  has  not  such  capacity.  If  the  complaint  merely  fails 
to  show  the  facts  which  confer  the  capacity  to  sue,  the  objec- 
tion must  be  taken  by  answer.  (Phenix  BJc.  v.  Donnell,  40 
K  Y.  R,  412.) 

In  determining  this  question,  we  must  assume  that  the 
plaintiff  is  vested  with  the  title  to  the  property  which  is  the 
subject  of  the  action,  for  the  complaint  contains  an  averment 
to  that  effect,  and  the  demurrer  admits  the  truth  thereof. 
Tin's  admission,  however,  must  be  qualified  by  other  tacts 
appearing  in  the  complaint,  namely,  that  the  plaintiff's  title 
is  that  of  a  sequestrated  only,  which  is  substantially  that  of  an 
assignee  of  the  Pennsylvania  corporation,  and  that  he  is  seeking 
to  avoid  a  transfer  made  by  his  assignor,  on  the  ground  that  it 
was  fraudulent  as  to  the  creditors  of  such  assignor.  He  stands 
in  the  shoes  of  the  Pennsylvania  corporation,  and  represents 
its  creditors.  As  such  assignee,  can  he  maintain  such  a  suit? 
The  question  is  merely  technical.  There  can  be  no  doubt 
that  the  creditors,  whom  the  plaintiff  represents,  might  have 


1872.]  OF  THE  STATE  OF  NEW  YORK.  31 

Barclay  «.  The  Quicksilver  Mining  Co. 

brought  the  suit,  and  it  is  not  very  material  to  the  merits 
whether  it  is  brought  in  their  names  or  that  of  the  plaintiff. 
The  rule  of  law  on  this  subject  is  that,  if  allowed  by  the  Lex 
.fori,  the  assignee  may  sue  in  his  own  name,  although  forbid- 
den by  the  foreign  law.  (Story  Confl.  of  Laws,  §  3") 7.)  It  does 
not  appear  from  the  complaint  whether  the  laws  of  Pennsyl- 
vania authorize  such  a  suit,  although  such  is  the  fact.  It  is 
enough,  however,  that  the  laws  of  this  State  do  authorize  it. 
(Laws  1858,  chap.  314,  p.  506.) 

It  is  urged,  however,  that  being  a  foreign  sequestrator  he 
cannot  sue,  although  he  is  vested  with  the  title  to  the  property. 
The  general  rule  certainly  is,  that  a  plaintiff,  who  is  a 
foreigner,  is  not  thereb/" incapacitated  from  bringing  a  suit 
against  a  defendant  who  is  a  citizen.  But  it  is  claimed  that 
all  the  rights  and  powers  of  the  plaintiff  being  derived  from 
the  statutes  of  Pennsylvania,  they  cannot  be  exercised  in 
this  State,  because  the  laws  of  a  State  have  no  extra 
territorial  force,  and  he  is  not  within  that  principle  of 
comity  which  entitles  him  to  recognition  as  a  suitor  in  our 
courts.  The  learned  counsel  for  the  defendant  has  referred  us 
to  numerous  authorities  in  support  of  this  position.  They 
are  cases  relating  to  foreign  executors,  administrators,  guar- 
dians, receivers  in  ordinary  creditors'  suits  and  the  like.  All 
of  them  proceed  upon  the  principle  that  the  rights  and  powers 
with  which  such  persons  have  been  invested  in  the  foreign 
State  cease  when  they  pass  beyond  the  limits  thereof.  They 
do  not  touch  the  question  involved  in  the  assertion  of  rights 
pertaining  to  actual  ownership  acquired  under  foreign  laws. 
It  cannot  be  questioned  that  devisees  or  legatees  may  sue  here 
to  recover  property  devised  or  bequeathed  to  them  by  a  per- 
son domiciled  in  a  foreign  State,  if  such  devises  and  bequests 
are  valid  according  to  the  law  of  this  State.  So  the  assignee 
of  a  foreign  executor  may  sue  here.  Foreign  assignees  in 
bankruptcy  have  the  same  right,  subject  to  rights  acquired  by 
our  citizens,  under  conflicting  dispositions  made  by  the  Jbank- 
rupt.  And,  in  the  case  of  receivers  or  trustees  of  foreign 
corporations,  we  think  the  rule  is  pretty  well  settled  that  they 


32  CASES  IN  THE  SUPREME  COURT         [July, 

Barclay  v.  The  Quicksilver  Mining  Co. 

may  sue  to  recover  property  situated  in  this  State,  subject, 
however,  to  the  qualification  that  the  foreign  law  will  not  bo 
recognized  to  the  extent  of  divesting  the  titles  of  our  own 
citizens  fairly  acquired.  The  case  before  us  is  one  between 
the  plaintiff,  representing  the  State  of  Pennsylvania  as  a 
creditor  of  the  corporation  created  by  the  laws  of  that  State, 
and  that  corporation  itself,  and  the  defendant,  to  whom  the 
Pennsylvania  corporation  has  transferred  its  property  by  vol- 
untary gift,  without  any  consideration,  and  for  the  purpose  of 
defrauding  the  State  of  Pennsylvania.  There  does  not 
appear  to  be  any  other  purchaser  or  creditor,  or  any  citizen 
of  this  State,  besides  the  defendant,  who  has  any  interest  in 
the  question.  We  cannot  withhold  the  application  of  the  rule 
of  comity  in  such  a  case.  This  State  has  not  yet  become  a 
sanctuary  for  the  protection  of  property  in  the  hands  of  a 
transferee,  who  has  acquired  it  by  a  fraudulent  contrivance 
like  that  alleged  in  the  complaint,  although  the  act  of  trans- 
fer was  made  in  a  foreign  State,  and  the  property  is  pursued 
by  a  person  in  whom  the  title  in  such  property  is  vested  under 
the  laws  thereof.  (See  on  this  subject  Runic,  v.  St.  John,  29 
Barb.,  585 ;  Hoyt  v.  Thompson,  I  Seld.,  320 ;  S.  C.,  19  K 
Y.  B.,  207  ;  Willitts  v.  Watte,  25  id.,  577 ;  Petersen  v.  The 
Chemical  Bank,  32  id.,  21.) 

Our  opinion,  therefore,  is  that  the  complaint  does  not  show 
any  lack  of  capacity  to  sue.  We  also  think  the  second  ground 
of  demurrer,  namely,  that  the  complaint  does  not  state  facts 
sufficient  to  constitute  a  cause  of  action,  is  untenable.  The 
general  averment  that  the  plaintiff  is  owner  is  sufficient,  with- 
out setting  forth  the  particular  statutes  whereby  he 
became  owner.  If  the  defendant  desired  more  informa- 
tion respecting  the  laws  of  Pennsylvania  which  conferred  the 
ownership,  his  remedy  was  by  motion  to  make  the  complaint 
more  definite  and  certain.  (People  v.  Ryder,  12  N.  Y.,  433 ; 
Same  v.  The  Mayor,  28  Barb.,  240.)  The  substance  of  the 
averment  is  that,  by  the  laws  of  Pennsylvania,  he  is  the 
owner,  &c.  Foreign  laws  are  facts  to  be  proved,  like  any 
other  facts  (Seymour  v.  Sturgess,  20  1ST.  Y.,  134),  and  it  is  suffi- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  33 

Supervisors  of  Richmond  County  v.  Wandel. 

cient  to  make  an  averment  corresponding  to  the  legal  effect 
of  them,  without  setting  them  forth  at  length. 

If  the  property  was  fraudulently  transferred,  as  alleged  in 
the  complaint,  the  plaintiff,  as  assignee  of  the  transferrer,  has 
a  right  to  recover  it,  by  virtue  of  the  statute  of  1858,  before 
cited,  provided  he  has  capacity  to  sue  at  all.  The  rules  of 
courts  of  equity  relative  to  suits  of  creditors,  referred  to  by 
the  learned  counsel  for  the  defendant,  have  not,  therefore,  any 
application  to  the  case. 

The  judgment  must  be  affirmed  with  costs,  with  leave  to 
the  defendant  to  answer  on  payment  of  costs. 


THE  BOARD  OF  SUPERVISORS  OF  RICHMOND  COUNTY,  Respond- 
ent, v.  PETER  S.  WANDEL  and  others,  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

A  county  treasurer  is  liable  to  the  county  for  interest  received  on  deposits 

of  county  funds. 
His  liability  arises  not  only  from  his  fiduciary  relation,  but  from  the  fact 

that  the  interest  belongs  to  the  county,  and  comes  into  his  hands  as 

county  treasurer. 
Accordingly  held,  that  his  sureties  for  the  faithful  execution  of  the  duties 

of  his  office,  and  for  payment,  according  to  law,  of  all  moneys  coming 

into  his  hands  as  county  treasurer,  were  liable  on  their  bond  for  such 

interest. 
Boards  of  supervisors  do  not  act  judicially  hi  passing  upon  the  annual 

accounts  rendered  by  county  treasurers. 
Nor  have  they  any  power,  in  passing  upon  his  accounts,  or  otherwise,  to 

sanction  the  withholding  by  him  of  any  moneys  belonging  to  the  county 

or  to  discharge  him  from  liability  therefor. 
Nor  will  their  acts  or  omissions  have  the  effect  to  discharge  his  sureties,  as 

such,  in  respect  of  such  liability. 

THIS  was  an  appeal  by  the  defendants  from  a  judgment 
against  them  entered  upon  the  report  of  a  referee. 

The  action  was  brought  by  the  supervisors  of  Richmond 
county  against  defendant  Wandel,  the  treasurer  of  that 

LANSIXG — VOL.  VI.         5 


34  CASES  IN  THE  SUPREME  COURT         [1872. 

Supervisors  of  Richmond  County  v.  Wan  del. 

county,  and  the  other  defendants  as  sureties  upon  his  official 
bond,  given  by  him  upon  entering  upon  the  office  of  county 
treasurer. 

It  appeared  and  was  found  by  the  referee  that  Wandel  was 
duly  elected  treasurer  of  Richmond  county  for  a  term  of  three 
years,  fmm  January  1,  1861,  and  upon  entering  upon  the 
duties  of  the  office  gave  an  official  bond,  in  which  the  other 
defendants  united  as  sureties,  as  follows,  viz. : 

"  Know  all  men  by  these  presents  that  we,  Peter  S.  Wandel, 
of  the  town  of  Southfield ;  Ephraim  Clark,  of  the  town  of 
Southfield  ;  Samuel  H.  Frost,  of  the  town  of  Westfield  ;  and 
Daniel  L.  Clawson,  of  the  town  of  Southfield,  and  county  of 
Richmond,  are  held  and  firmly  bound  unto  the  supervisors  of 
the  county  of  Richmond  in  the  sum  of  $50,000,  to  be  paid  to 
the  said  supervisors,  or  their  successors  in  office,  for  which 
payment,  well  and  truly  to  be  made,  we  bind  ourselves,  our 
and  each  of  our  heirs,  executors  and  administrators,  jointly 
and  severally,  firmly  by  these  presents.  Sealed  with  our 
seals,  and  dated  the  13th  day  of  November,  1860.  Whereas, 
Peter  S.  Wandel  has  been  duly  elected  county  treasurer,  in 
and  for  the  county  of  Richmond:  Now,  therefore,  the  con- 
dition of  this  obligation  is  such  that  if  the  said  Peter  8. 
Wandel  shall  faithfully  execute  the  duties  of  said  office,  and 
shall  pay,  according  to  law,  all  moneys  which  shall  come  to 
his  hands  as  county  treasurer,  and  render  a  just  and  true 
account  thereof  to  the  board  of  supervisors,  or  the  comptroller 
of  the  State,  when  thereunto  required,  thon  this  obligation 
to  be  void,  otherwise  to  remain  in  full  force  and  virtue." 

(Signed,  etc.) 

That  the  bond  was  duly  filed,  and  Wandel  discharged  the 
duties  of  the  office  of  treasurer  during  the  term  for  which  he 
had  been  elected. 

The  referee  also  found  that  the  defendant  Wandel  had  not 
faithfully  executed  the  duties  of  the  office  of  county  treasurer 
of  Richmond  county  during  his  term,  but  that  he  had  failed 
and  neglected  to  do  so,  and  that  he  did  not  pay  according  to 


1S72.]  OF  THE  STATE  OF  NEW  YORK.  35 

Supervisors  of  Richmond  County  v.  WandeL 

law  all  moneys  which  came  into  his  hands  as  treasurer,  and 
did  not  render  a  just  and  true  account  thereof  to  the  board 
of  supervisors,  or  to  the  comptroller  of  the  State,  when  there- 
unto required,  as  specified  in  his  bond,  but  had  committed 
breaches  of  the  condition  thereof  by  his  failure  to  pay  over 
or  enter  in  his  accounts  us  treasurer,  submitted  to  the  board 
of  supervisors,  or  pay  out  according  to  law,  certain  sums 
received  by  him  for  interest  on  deposits  of  county  moneys; 
also  by  erroneously  and  by  mistake  crediting  himself  with 
money  paid  the  State  superintendent  of  public  instruction 
which  had  not  been  so  paid,  and  also  by  several  other  omis- 
sions and  errors  in  his  accounts,  by  reason  of  which  he  was 
credited,  erroneously,  with  the  payment  of  certain  moneys. 
That  Wandel  had  claimed,  before  the  supervisors  at  their 
annual  meeting  at  which  his  accounts  were  audited,  that  the 
interest  moneys  received  by  him  on  deposits,  as  mentioned, 
belonged  to  him  as  a  perquisite  of  his  office,  and  that 'the 
board  thereupon  audited  and  allowed  his  account  without 
insisting  upon  the  credit  to  the  county  of  the  interest  moneys 
from  deposits,  and  that  his  accounts  were  also  passed  upon  and 
allowed  upon  two  subsequent  annual  accountings  by  the 
treasurer  of  the  board,  and  items  of  interest  received  upon 
deposit  of  county  funds  were  not  credited  to  the  county,  or 
charged  against  him  in  his  accounts,  and  that  such  credit  was 

o  o 

not  insisted  on  or  exacted  from  him. 

That  Wandel  had  been  elected  as  county  treasurer  of  Rich- 
mond county  for  a  further  term  of  three  years,  commencing 
with  the  year  1864. 

That  after  the  auditing  and  allowance  of  his  account  in 
November,  1864,  at  a  meeting  of  the  board  of  supervisors, 
Wandel  represented,  in  regard  to  his  previous  accounts,  that 
he  could  not  comprehend  the  system  of  accounts  of  the 
comptroller's  office,  and  that  he  had  not  paid  over  to  the 
State  treasurer  the  amounts  received  for  school  moneys  in 
payment  of  county  indebtedness;  and  that,  being  asked  by 
the  chairman,  informed  the  board  that  the  difference  would 
be  from  four  to  perhaps  six  or  seven  thousand  dollars ;  that 


36  CASES  IN  THE  SUPREME  COURT          [1872. 

Supervisors  of  Richmond  County  v.  Wandel. 

be  having  retired  from  the  board,  and  the  board  having  con- 
sidered the  subject  of  services  rendered  by  him  in  promoting 
the  enlistment  of  men  to  fill  the  quota  of  Richmond  county, 
and  in  raising  funds  to  meet  expenses  of  the  draft,  which 
were  stated  to  have  been  arduous,  a  motion  was  made  that 
whatever  difference  existed  in  "Wandel's  accounts  with  the 
county,  in  respect  to  school  moneys,  should  be  allowed  to  him 
for  his  services  in  relation  to  the  draft.  This  motion  was 
unanimously  assented  to,  but  no  resolution  was  entered  in 
any  book  of  record  of  the  board,  or  signed  by  the  chairman 
or  clerk,  or  reduced  to  writing. 

The  referee  further  found  that  the  defendants  were  liable 
on  the  bond  above  set  forth,  and  for  breach  of  the  condi- 
tions thereof,  notwithstanding  the  allowance  of  interest  to 
Wandel  by  the  supervisors  as  a  perquisite,  and  notwith- 
standing the  allowance  to  him  for  services  in  promoting 
enlistments.  That  neither  the  auditing  nor  allowance  oJ 
the  county  treasurer's  accounts  by  the  supervisors,  noi 
their  omission  to  charge  him  with  the  interest  and  othei 
moneys  appearing  to  be  due  from  him,  discharged  him  or  1m 
sureties  from  liability  for  such  amounts  on  his  bond  ;  and  that 
the  resolution  of  the  supervisors  at  their  meeting  in  Novem- 
ber, 1864,  was  inoperative  and  ineffectual  for  such  purpose 
for  the  reason,  among  others,  that  it  was  not  in  writing,  and 
that  the  board  of  supervisors  were  without  authority  to  make 
any  profits  or  gratuity  of  the  public  money  received  or  col 
lected  by  the  treasurer,  or  to  allow  counterclaims  against  the 
county  in  his  behalf,  except  for  county  charges ;  or  to  make 
allowance  for  any  such  charges  by  him  against  the  county, 
except  upon  claims  presented  and  verified  by  him  as  required  by 
law.  And  he  found  in  fkvor  of  the  plaintiffs  right  to  recover 
on  the  bond  in  respect  of  the  sums  allowed  the  plaintiff  by  the 
supervisors,  as  before  mentioned,  with  interest. 

S.  F.  Rawson  for  the  appellant,  cited  2  Caine's  Cases,  1 
10  Johns.,  180 ;  16  id.,  100 ;  Hill  on  Trus.,  p.  41 ;  6  B.  &  C., 
739  ;  9  D.  &  R.,  723 ;  Bex  v.  Sheriff  of  Surrey  (I  Taunt.,  126'. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  37 

Supervisors  of  Richmond  County  v.  Wandel. 

and  cases  cited  in  note  J.,  p.  207) ;  Burg,  on  Surety,  116 ; 
People  v.  Jansen  (7  Johns.,  332) ;  1  R.  S.,  848  ;  id.,  860,  §  68 ; 
Chemung  Bank  v.  The  Supervisors,  etc.  (5  Denio,  526) ;  Super- 
visors of  Onondaga  v.  Briggs  (2  id.,  29) ;  Supervisors  v. 
Birdsall  (4  Wend.,  460) ;  Ex  parte  Wilson  (11  Yesey,  420) ; 
Ltwls  v.  Jones  (4  B.  &  C.,  506). 

Tompkins  Westervelt,  for  the  respondents,  cited  Supervisors 
of  Livingston  v.  White  (30  Barb.,  72) ;  Looney  v.  Hughes  (26 
N.  Y.,  514) ;  Jefferson  County  v.  Jones  (19  Missouri,  51) ;  Com- 
monwealth v.  Brice  (22  Penn.,  211);  Bowen  v.  Washington 
Co.  (25  id.,  69);  1  R.  S.,  369,  §  20;  1  id.,  370,  chap.  189,  Laws 
of  1846,  §  1 ;  1  R.  S.,  369,  §  4 ;  chap.  180,  Laws  of  1845, 
amended  by  chap.  490,  §  2,  Laws  of  1847  ;  Chemung  Bank 
v.  Supervisors  of  Chemung  Co.  (5  Denio,  520) ;  Supervisors 
of  Chemung  v.  Birdsall  (4  Wend.,  361) ;  1  R.  S.,  367,  §  4, 
Bub.  1;  id.,  364,  §  4;  id.,  337,  §  9;  Meeker  v.  Van  Eens- 
selaer  (15  Wend.,  398) ;  Hallock  v.  Woolsey  (23  id.,  328) ; 
Owneys  v.  Speed  (5  Wheat.,  524);  Miner  v.  McLean  (4 
McLean,  140) ;  Taylor  v.  Henry  (2  Pick.,  397) ;  Hutchinson 
v.  Stall  (11  Yerm.,  421) ;  Smith  v.  Helmer  (i  Barb.,  416) ; 
Moor  v.  Newfield  (4  Greenl.,  44) ;  Britton  v.  Lawrence  (1 
Chip.,  103)  ;  Angel  v.  Pownal  (3  id.,  461) ;  Cabot  v.  Britt 
(36  Yt.,  353) :  Committ  v.  Reaqua  (18  Me.,  344) ;  Blaisdell 
v.  Briggs  (23  id.,  123) ;  People  v.  Gardinier  (9  Johns.,  71). 

Present — BAENAED,  P.  J.,  GILBERT  and  TAPPEX,  JJ. 

By  the  Court — GILBERT,  J.  We  are  of  opinion  that  the 
judgment  appealed  from  is  in  all  respects  correct. 

It  is  not  disputed  that  Wandel  is  liable  in  the  sum  found 
by  the  referee.  But  it  is  claimed  that  the  defendants,  who 
are  his  sureties,  are  not  liable  for  the  item  of  interest  received 
by  Wandel  on  moneys  belonging  to  the  county.  It  is  diffi- 
cult to  discover  any  reasonable  ground  upon  which  to  exempt 
them  from  liability.  The  liability  of  Wandel  on  the  bond, 
for  these  moneys,  arises  from  the  fact  that  they  belonged  to 


&8  CASES  IN  THE  SUPREME  COURT          [1872. 

Supervisors  of  Richmond  County  v.  Wanclel. 

the  county,  and  came  to  his  hands  as  county  treasurer. 
This  point  has  already  been  de3ided  by  this  court,  and 
admits  of  no  question.  The  notion  that  a  public  officer  may 
keep  back  interest  which  he  has  received  upon  a  deposit  of 
public  moneys,  as  a  perquisite  of  office,  is  an  affront  to  law  and 
morals,  for  if  done  with  evil  intent,  it  is  nothing  less  than 
embezzlement.  Having  been  received  by  Wandel  as  county 
treasurer,  the  item  of  interest  is  within  the  terms  of  the 
bond.  The  liability  of  the  defendants,  originally,  for  the 
other  money  embraced  in  the  judgment,  is  not  contested. 
But  it  is  claimed  that  they  have  been  discharged  therefrom 
by  the  acts  of  the  board  of  supervisors.  We  think  otherwise. 
The  allowance  made  to  Wandel  of  the  moneys  in  controversy 
was  without  authority  of  law,  and,  therefore,  void.  Boarda 
of  supervisors  may  audit  and  allow  demands  against  the 
county.  In  performing  this  duty  they  act  judicially.  But 
they  do  not  so  act  in  passing  upon  the  annual  account? 
rendered  by  the  treasurer,  nor  have  they  any  power,  in  pass- 
ing upon  the  treasurer's  accounts  or  otherwise,  to  sanction 
the  withholding  by  him  of  any  moneys  belonging  to  the 
county,  or  to  discharge  him  from  liability  therefor.  The 
referee  has  discussed  this  subject  at  length,  and  we  quite 
agree  with  the  views  expressed  by  him.*  Nor  did  the  acts 

*  The  following  is  an  extract  from  the  opinion  of  Hamilton  W.  Robin- 
son, Esq.,  the  referee  before  whom  the  case  was  tried: 

"  As  to  any  accounts  against  the  county,  duly  presented  to  the  board 
of  supervisors,  they  act  judicially,  and  their  determination  or  adjudication 
upon  them  is  final.  But  as  to  the  accounts  of  the  county  trea&urer  rendered 
to  them,  their  functions  are  to  '  audit  and  allow '  them.  (1  R.  S.,  860,  §  4.) 
Their  action  as  to  any  matters  of  charge  against  the  county,  presented  to 
them,  on  such  settlement,  in  the  manner  required  by  law,  in  discharge  of 
any  claims  of  the  county,  and  which  arise  from  any  discharge,  diminution 
or  recoupment  against  any  such  claim  of  the  county,  I  regard  as  equally 
within  the  scope  of  the  judgment  which  the  supervisors  are  authorized  to 
render  upon  the  claims  and  accounts  of  the  treasurer,  submitted  to  their 
examination  for  '  audit  and  allowance.'  Were  this  present  claim  merely 
for  interest  on  funds  belonging  to  the  county  alleged  to  have  been  unreasona- 
bly and  illegally  retained  by  him,  the  judgment  of  the  supervisors  seems  to 
me  conclusive,  because  the  matter  presented  for  their  consideration  engrosses 


1872.]  OF  THE  STATE  OF  NEW  YORK.  39 

Supervisors  of  Richmond  County  v.  Wandel. 

or  omissions  of  the  supervisors,  on  which  the  defendants  rely, 
have  the  effect  to  discharge  them  as  the  trustees  of  Wandel, 

the  entire  consideration  of  the  subject-matter,  and  their '  audit  and  allow- 
ance' of  the  account  disposes  of  all  the  items  of  discharge  which  might 
be  presented  in  abatement  or  disallowance  of  the  account  thus  presented: 

"Interest  is  but  an  incident  to  the  principal  debt  and  the  disallowance 
by  the  supervisors,  upon  settlement  of  the  treasurer's  account,  of  a  charge 
against  him  of  interest  upon  the  sums  of  money  in  his  hands  as  treasurer, 
improperly  retained  by  him,  is  within  the  rule  as  above  stated.  But  as  to 
moneys  shown  to  have  been  actually  received  by  the  treasurer  for  interest 
on  any  such  moneys,  a  different  rule  prevails.  Being  omitted  in  his  accounts, 
as  rendered  and  settled  by  the  board  of  supervisors,  they  exist  as  affirma- 
tive claims  in  favor  of  the  county  for  moneys  never  embraced  in  any  pre- 
vious account  rendered  by  their  agent  or  trustee,  and  presented  for  the 
consideration  of  the  board. 

"  By  the  then  existing  provisions  of  the  Revised  Statutes,  the  boards  of 
supervisors  of  the  several  counties  of  this  State  were  authorized  at  their 
annual  meeting  (I  R.  S.,  367,  §  4,  sub.  2),  '  to  examine,  settle,  and  allow  all 
accounts  chargeable  against  such  county,  and  to  direct  the  raising  of  such 
Bums  as  may  be  necessary  to  defray  the  same.'  By  2  R.  S.,  36!) ,  section  20, 
it  is  made  the  duty  of  the  county  treasurer  '  to  receive  all  moneys  belonging  to 
the  county,  from  whatever  source  they  may  be  derived,  and  all  moneys 
belonging  to  the  State  which  by  law  are  directed  to  be  paid  to  him,  and 
pay  and  apply  such  moneys  in  the  manner  required  by  law.'  By  section 
21,  '  the  county  treasurer  shall  keep  a  just  and  true  account  of  the  receipts 
and  expenditures  of  all  moneys  which  shall  come  into  his  hands,  by 
virtue  of  his  office,  in  a  book  or  books  to  be  kept  for  that  purpose.'  By 
section  23,  '  at  the  annual  meeting  of  the  board  of  supervisors,  or  at  such 
other  time  as  they  shall  direct,  the  county  treasurer  shall  exhibit  all  his 
books  and  accounts,  and  all  his  vouchers  relating  to  the  same,  to  be  audited 
and  allowed.' 

"  By  chapter  180,  of  the  Laws  of  1845,  section  24  (as  amended  by  chap. 
490,  §  2,  of  the  Laws  of  1847),  it  was  enacted  that '  no  account  shall  be  audited 
by  any  board  of  town  auditors  or  supervisors,  or -superintendents  of  the 
poor,  for  any  services  or  disbursements,  unless  such  account  shall  be  made 
out  in  items,  and  accompanied  with  an  affidavit  attached  to  and  filed  with 
such  account,  made  by  a  person  presenting  or  claiming  the  same,  that  the 
items  of  such  account  are  correct,  and  that  the  disbursements  am1  services 
charged  therein  have  been  in  fact  made  or  rendered,  or  necessary  to  be 
made  or  rendered,  at  that  session  of  the  board,  and  stating  that  no  part 
thereof  IIPS  been  paid  or  satisfied.' 

"  By  the  Revised  Statutes  (p.  370,  §  26),  the  county  treasurer  is  entitled  to 
retain  a  commission  of  one  per  cent  on  every  dollar  which  he  shall  receive 
and  pay,  to  wit,  one-half  of  such  commission  for  receiving,  the  other  half 


40  CASES  IN  THE  SUPREME  COURT        [1872. 

Supervisors  of  Richmond  County  v.  Wandel. 

for  the  reason  that  the  trustees  of  one  public  officer  will  not 
be  allowed  to  plead  in  their  own  discharge  the  neglect  or 

for  paying ;  and  by  chapter  189,  section  one,  of  the  Laws  of  1846,  it  was  pro- 
vided that  such  compensatiqn  should  in  no  case  exceed  the  sum  of  $500 
per  annum.  From  these  provisions,  it  will  be  perceived,  the  duty  of  the 
board  of  supervisors  is  confined  to  auditing  and  allowing  the  account  of 
the  couniy  treasurer  for  the  money  received  and  disbursed  by  him  as  such 
officer ;  that  they  authorize  no  allowance  to  him  in  the  settlement  of  his 
account  of  any  private  claims  against  the  county,  unless  they  are  presented 
in  the  mode  prescribed  for  the  presentation  of  claims  against  the  county 
by  other  persons ;  that  to  confer  jurisdiction  for  the  allowance  of  adverse 
claims  against  the  county,  the  account  must  be  made  out  in  items,  and 
verified  by  affidavits  of  the  persons  presenting  the  claim  ;  and  the  statute 
above  referred  to  prohibits  the  auditing  of  any  claim  against  the  county 
not  so  presented  and  verified. 

"  The  liability  of  the  defendant  Wandel  for  the  several  sums  of  interest 
money  allowed  to  him  by  the  New  York  Life  Insurance  and  Trust  Com- 
pany, upon  the  deposits  made  by  him  in  his  name  as  treasurer  of  the 
county,  is  established,  unless  the  action  of  the  subsequent  board  of  super- 
visors, in  settling  his  account  as  treasurer,  with  full  knowledge  that  he  had 
collected  these  moneys  and  failed  to  charge  him  therewith,  is  conclusive 
upon  the  question  of  those  interest  moneys.  In  each  year  (1861, 1862  and 
1863)  the  board  had  evidence  before  them  that  he  had  received  the  interest 
moneys,  with  which  he  is  now  sought  to  be  charged,  from  the  New  York 
Life  Insurance  and  Trust  Company,  and  abandoned  the  claim  to  them  by 
failing  to  assert  the  right  of  the  county  to  them  on  the  annual  average  set- 
tlements of  the  treasurer's  account.  In  Supervisors  of  Cfonango  v.  Bird- 
sail  (4  Wend.,  461),  the  Supreme  Court  held  that '  if  supervisors,  in  the 
adjustments  of  accounts,  which  it  is  their  province  to  audit  and  settle, 
abandon  a  just  claim  (for  interest  claimed  from  the  treasurer  on  sums  he 
!  had  illegally  withheld)  respecting  which  there  is  a  dispute,  they  cannot, 
on  a  future  occasion,  when  it  may  suit  their  convenience,  set  it  up  again.' 
But,  nevertheless,  the  right  of  the  supervisors  to  recover  commissions  ille- 
gally charged  in  the  account  then  settled  as  '  an  allowance  beyond  com- 
pensation authorized  by  law,'  notwithstanding  such  settlement,  is 
there  asserted  by  the  court.  That  case  involved  the  right  to  add  to 
the  charges  against  the  treasurer,  for  interest  on  money  he  had  unreason- 
ably, and  perhaps  illegally,  withheld,  and  the  claim  being  of  a  mere 
incident  to  the  principal  debt,  and  the  principal  being  paid  or  accounted 
for,  the  waiver  of  any  claim  for  interest  was  held  to  be  within  the  discre- 
tion of  the  board  of  supervisors ;  but  in  the  present  case,  the  treasurer  hav- 
ing, as  I  find,  actually  received  these  moneys  (several  sums)  from  the  New 
York  Life  Insurance  and  Trust  Company,  for  interest  upon  the  funds  of  th 
county,  and  the  claim  to  retain  it  being  merely  as  a  perquisite  of  office 


1872.]  OF  THE  STATE  OF  NEW  YORK.  41 

Supervisors  of  Richmond  County  n.  Wandel. 

illegal  acts  of  other  public  officers.     (Looney  v.  Hughes,  26 
N.  Y.,  522.) 

The  judgment  must  be  affirmed,  with  costs. 


the  board  of  supervisors,  in  my  opinion,  had  no  jurisdiction  to  allow  it  on 
that  ground,  or  to  release  or  discharge  him  therefrom.  In  an  ordinary  set- 
tlement of  accounts  between  individuals,  they  are  at  liberty  to  make  any 
contracts  they  choose  in  respect  to  it ;  in  the  accommodation  of  mutual 
claims  they  may  relinquish,  each  to  the  other,  any  pretensions  or  claims, 
and,  in  making  a  settlement,  may  each  agree  that  a  certain  fixed  sum  shall 
be  the  true  balance  of  their  respective  claims.  The  account  thus  stated 
raises  an  implied  promise  upon  the  part  of  the  person  found  indebted  to  pay 
the  balance  settled  between  them. 

"But,  as  between  public  officers,  upon  one  of  whom  the  duty  is  conferred 
'  to  audit  and  allow '  the  accounts  or  claims  of  the  other,  no  such  right 
exists  of  entering  into  a  '  mutual  accounting,'  or  making  any  such  contract 
with  each  other,  either  express  or  implied,  in  respect  to  the  matters 
involved,  as  gives  to  an  account  stated  or  a  simul  computassent  its  legal  effi- 
cacy. The  autho'rity  conferred  upon  the  board  to  audit  and  allow  '  the 
accounts  of  the  treasurer  is  to  be  strictly  construed.  It  confers  no  power 
to  allow  any  but  legal  county  charges.'  (Chemung  County  Bank  v.  Super- 
visors Chemung,  5  Denio,  20.)  It  does  not  authorize  the  discharge  or  con- 
donation of  any  amounts  found  legally  due  from  the  accounting  party,  nor 
the  exercise  of  any  discretion  in  respect  to  the  matters  submitted.  (Morris 
v.  The  People,  3  Denio,  382.)  The  board  of  supervisors,  upon  any  such 
audit  of  the  treasurer's  account,  cannot  allow  any  claim  upon  any  notions 
of  theh*  own  as  to  its  equity  (People  v.  Lawrence,  6  Hill,  244),  nor  as  a  '  per- 
quisite of  office,'  nor  any  but  such  as  are  expressly  sanctioned  by  statute. 
I  am  of  the  opinion  that  the  failure  of  the  board  to  bring  into  the  account 
of  the  treasurer,  for  the  years  1861, 1862  and  1863,  the  items  of  money  actu- 
ally received  by  him  for  interest  on  the  public  funds  does  not  prevent  their 
recovery,  although  the  receipt  by  him  of  these  moneys  was  brought  to 
their  notice,  and  they  neglected  to  charge  him  with  them. 

"  In  the  case  of  the  Supervisors  of  Chenango  v.  Birdsall  (4  Wend. ,  453),  the 
question  as  to  a  charge  for  interest  on  money  the  treasurer  illegally  with- 
held, was  submitted  to  the  supervisors,  and  they  took  into  consideration 
his  liability  for  such  interest. 

The  right  of  the  county  to  maintain  any  such  claim  was  disputed,  and 
was  waived.  This  interest  was  not  money  received  by  the  treasurer,  but 
existed  in  a  claim  against  him  as  an  incident  to  the  principal  debt,  and  the 
principal  being  accepted,  the  claim  for  interest  thereby  fell  with  it ;  and 
Justice  MARCY  regards  this  inchoate  and  disputed  claim,  to  recover  from  the 
treasurer,  interest  on  money  illegally  withheld  by  him,  as  within  the  juris- 
diction and  judgment  of  the  board  on  auditing  the  account,  and  that,  as  it 
was  abandoned  after  full  knowledge  of  all  the  facts,  it  could  not  be  sued 

LANSING — VOL.  VI.       6 


42  CASES  IN  THE  SUPREME  COURT          [1872. 

Supervisors  of  Richmond  County  v.  Wandel. 

for  and  recovered  in  a  subsequent  action.  In  the  present  case,  the  treasurer 
received  these  moneys  from  the  county  funds.  The  statute  is  peremptory 
that  he  shall  receive  and  account  for  'all  moneys  belonging  to  the  co-mty, 
from  whatever  source  they  may  be  derived,'  and  '  pay  and  apply  such 
moneys  in  the  manner  required  by  law.'  (I  R.  S.,  369,  §  20.)  The  board  of 
supervisors,  in  respect  to  money  so  received  by  him,  had  no  discretion  or 
authority  to  allow  them  as '  perquisites  of  office,'  or  to  make  a  gift  or  gratuity 
of  them  to  him,  nor  to  condone,  discharge  or  absolve  him,  without  proper 
consideration,  from  liability  for  them,  and  their  attempt  to  do  so  (in  18  >1), 
by  ignoring  or  disregarding  the  rights  of  the  county  in  respect  to  the  sum 
he  had  received  for  such  interest,  was  without  any  authority  conferred 
upon  them  by  statute,  and  constituted  no  rclinquishment  or  release  of  the 
claims  for  them  by  a  subsequent  board ;  and  although  the  county  treasurer,  at 
his  several  subsequent  annual  accountings,  in  1832  and  1803,  exhUutcd  to  the 
board  his  bank  book,  showing  the  receipt  by  him  of  interest  on  the  moneys 
of  the  county  in  those  years,  they  failed  to  take  any  notice  of  (hem,  or  to 
require  that  he  should  be  charged  with  them.  Such  non-action  on  their 
part,  even  with  full  knowledge  that  he  claimed  them  as  a  perquisite  of 
office,  for  a  stronger  reason  was  of  no  effect  as  a  surrender  or  release  of  the 
rights  of  the  county. 

"His  duty  was  made,  by  the  statute, imperative, and  he  rendered  himsslf 
and  his  sureties  liable  for  these  moneys  thus  received,  and  which  he  has 
failed  to  pay  or  apply  according  to  law,  notwithstanding  that  the  board  for 
those  years,  in  auditing  and  allowing  his  account,  may  have  knowingly  and 
designedly  omitted  them  as  a  charge  against  him. 

"  For  these  reasons,  I  am  of  the  opinion  that  the  defendants  are  liable  for 
these  several  sums  collected  or  received  by  him  for  interest  money  on 
county  fund,  in  1861,  1863  and  1863.  Third,  as  to  the  sums  received  by 
Mr.  Wandel,  as  county  treasurer,  from  the  school  funds,  amounting  for  the 
years  1861,  1862  and  1863  (beyond  any  credits  or  deductions  properly 
allowed  to  him),  and  as  above  stated,  for  186 1 ,  $2,059.38 ;  for  1862,  $2,04(5.59 ; 
and  for  1863,  $2,5)51.96,  beyond  what  he  has  accounted  for,  the  errors  arc 
fully  established,  and  he  has  never  paid  or  applied  any  portion  of  them  in 
the  manner  required  by  law. 

"  No  defence  is  offered  against  a  recovery  of  them,  except  an  alleged 
accounting,  in  which  it  is  claimed  they  were  merged  and  satisfied.  It 
appears  from  the  evidence  that,  at  the  annual  meeting  of  the  board  in  1864, 
and  after  his  accounts  for  that  year  had  been  audited  and  allowed,  Mr. 
Wandel  stated  to  the  board  that  in  relation  to  the  school  moneys  '  he  was 
befogged ;' that  he  could  not  understand  the  system  of  accounts  kept  at 
the  comptroller's  office ;  that  he  had  never  actually  received  any  money 
from  the  State,  having  passed  over  the  checks  he  received  for  nv-xicya 
immediately,  in  payment  of  the  county  indebtedness;  the  chairman  asked 
him  what  the  difference  would  amount,  to  and  he  replied  from  $1,000 
to  perhaps  $3,OOJ  or  $7,000.  He  retire  1,  and  the  board  conferred 
together;  they  discussed  and  took  into  consideration  the  services  he  had 


1872.]  OF  THE  STATE  OF  NEW  YORK.  43 

1 . . 

Supervisors  of  Richmond  County  v.  Wandel. 

performed  in  enlisting  men  and  procuring  substitutes  to  fill  the  quota 
required  from  the  county  toward  filling  the  draft  and  in  raising  funds  to 
meet  the  expenses  of  the  draft,  which  were  stated  to  have  been  arduous, 
and  Mr.  Keeley,  one  of  the  members,  moved  (substantially)  '  that  what- 
ever difference  existed  in  Wandel's  accounts  with  the  county,  in  respect  to 
these  school  moneys,  should  be  allowed  to  him  for  services  in  relation  to 
the  draft.'  This  proposition  was  put  to  vote,  and  passed  unanimously. 

"  This  resolution,  however,  was  never  signed  by  the  chairman  or  the  clerk 
of  the  board,  nor  recorded  in  any  book  of  record  of  the  county,  nor  was  it 
ever  reduced  to  writing,  or  manifested  otherwise  than  by  the  verbal  reso- 
lution above  stated. 

"Another  resolution,  highly  commendatory  of  him  and  his  services  iu 
behalf  of  the  county  in  effecting  the  enlistment  of  men  to  fill  the  quota  of 
the  county,  was  then  also  passed  and  recorded  in  the  county  ledger. 

"  From  the  accounts  of  the  treasurer,  presented  in  evidence,  it  further 
appeal's  that  Wandel,  in  1863,  received  credit  for  commissions  (on  war  loan 
of  $20,000)  $200,  and  for  fees  for  obtaining  loans  and  issuing  bonds,  stamps 
and  disbursements,  $1,009;  and  in  his  accounts,  audited  and  allowed  in 
1861,  he  charged  and  received  credit  for  commissions  for  raising  and  dis- 
bursing money  in  enlisting  volunteers  to  fill  the  quota  of  the  county,  with 
which  duty  he  had  been  entrusted  ($1,874  and  $4,041.50),  $5,9I~>.50;  for 
a  commission  of  $5  per  man  on  1,003  men  enlisted  ($2, 233  and  ^3,715), 
the  sum  of  $1,000 ;  for  completing  and  delivering  bonds  ($300  an.l  $:J50), 
$550,  making  a  total  of  allowances  for  these  very  services  of  $11,46150; 
and  had  also  been  allowed  credit  in  his  account,  as  superintenden  t  of  enlist- 
ments, for  raising mmeys,  to  wit:  two  and  one-half  per  cent  on  $3~>,000, 
$2,375,  five  per  cent  on  $62,000  =$3,100,  and  ten  percent  on  $189,000=. 
$18,900,  together  amounting  to  $24,375.  None  of  those  charges  and 
allowances  are  questioned,  but  this  attempt  to  make  him  an  additional 
allowance,  gift  or  gratuity  of  upward  of  $10,000  has  been  repudiated  by  a 
subsequent  board,  which  ordered  the  bringing  of  this  suit,  and  I  am  of  the 
opinion  that  the  resolution  and  action  of  the  board  in  1864  to  effect  that 
object  was  void,  because — 

"  1st  No  such  claim  for  services  was  ever  presented  by  Mr.  Wandel,  in 
the  form  or  verified  manner  required  by  the  twenty-fourth  section  of  chap- 
ter 180  of  the  Laws  of  1845,  as  amended  by  section  2  of  chapter  490,  of 
the  Laws  of  1847,  above  quoted.  It  is  uncertain  from  the  resolution 
whether  the  amount  of  the  deficiencies  in  the  treasurer's  account  for  school 
moneys  (amounting,  in  fact,  to  $10,120.99,  exclusive  of  interest)  should  bo 
specifically  allowed  for  his  entire  compensation  for  his  services  '  in  rela- 
tion to  the  draft,'  as  expressed  in  the  verbal  resolution,  or  should  be  in 
addition  to  the  $11,465.50  already  allowed  him  therefor,  exclusive  of 
$24,375  credited  him  for  commissions  on  the  bonds  issued  for  loans.  The 
act  of  1864  (chap.  8),  authorizing  the  payment  of  expenses  incurred  and 
services  rendered  in  procuring  enlistments,  does  not  exempt  him  from  the 
operation  of  the  act  of  1845.  This  provision  of  law  regulated  and  con- 


44  CASES  IN  THE  SUPREME  COURT          [June, 

The  People  v.  Daniell. 

trolled  proceedings  of  this  character,  and  was  intended  to  prevent  any  such 
vague  and  indefinite  action ;  the  presentation  of  the  account  so  verified 
was  necessary  to  confer  jurisdiction  to  act  upon  the  subject.  Without 
presentation  in  writing  of  the  claim  verified,  the  action  of  the  board  was 
entirely  without  authority. 

"  3d.  That  the  action  of  the  board  in  passing  this  resolution  had  no  refer- 
ence to  the  auditing  and  allowance  of  any  account  then  before  them,  and 
was  void,  because,  First :  It  was  of  a  judicial  character  and  should  have 
been  in  writing.  (Meeker  v.  Van  Sensselaer,  15  Wend.,  398;  Smith  v.  Hel- 
mer,  7  Barb.,  417 ;  1  Kev.  Stat.,  367,  §  9,  Subs.  1,  2  ;  Taylor  v.  Henry,  2  Pick., 
397 ;  Brilton  v.  Lawrence,  1  Chipman,  103.)  Second :  It  was  founded  upon 
a  misstatement  made  by  Mr.  Wandel  of  the  amount  of  school  money 
unaccounted  for,  and  without  any  correct  knowledge  or  information  as  to 
the  facts  of  the  case  being  afforded  them  by  Mr.  Wandel,  or  ascertained  by 
them  from  any  other  source,  as  to  the  true  balance  of  school  moneys  for 
which  he  had  failed  to  account,  then  amounting,  as  before  stated,  to 
$10,120.99.  Third :  Whatever  was  the  intention  of  this  board  in  making 
the  allowance,  by  way  of  offset  of  the  services  of  Mr.  Wandel,  in  the 
enlistment  service  of  the  county,  against  those  school  moneys,  the  legal 
effect  of  the  resolution  was  to  tender  or  offer  to  him  the  amount  of  his 
deficiency  as  'compensation'  and  full  satisfaction  therefor.  He  never 
accepted  this  proposition,  but  exacted  and  retained  the  full  sums  for  com- 
missions and  services,  as  before  stated,  of  $11,465.50,  or,  including  the  conv- 
missions  credited  him,  of  $35,840.  It  is  for  these  reasons  that  I  hold  that 
the  defendants  are  liable  for  the  full  amount  of  these  school  moneys,  with 
interest  to  be  computed  on  the  principal  sums  from  the  several  dates  when 
they  were  erroneously  allowed  or  should  have  been  entered  in  the  treasu- 
rer's account." 


THE    PEOPLE,   &e.,    ex   rel.   EDWARD    P.    UNDERWOOD,    v. 
EDWAKD  S.  DANIELL,  Major,  &c. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  JUNE,  1871.) 

The  legislature  has  power,  under  the  State  Constitution  (art.  11,  §  1),  to 

create  courts-martial  for  the  discipline  of  the  militia. 
And  under  the  Constitution  of  the  United  States  (art.  1,  §  8),  and  legislation 

of  congress,  it  is  obligatory  on  the  States  to  provide  for  such  courts  as  part 

of  their  militia  system. 
Article  6  of  the  State  Constitution  has  no  reference  to  military  courts,  but 

applies  exclusively  to  those  of  civil  judicature. 
The  provisions  of  section  2,  article  1,  of  the  State  Constitution,  in  regard  tc 

the  right  of  jury  trial,  are  not  applicable  to  trials  by  court-martial. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  45 

The  People  v.  Daniell. 

NOT  are  those  of  2  R.  S.,  274,  §  1,  regarding  the  publicity  of  the  courts. 
Nor  is  section  6,  article  1,  of  the  State  Constitution,  regarding  the  right  to 
appear  by  counsel. 

TUB  proceedings  in  this  case  were  brought  before  the  court 
by  certiorari  to  the  defendant,  a  major  of  13th  regiment,  N. 
Y.  State  National  Guard,  as  chairman  of  a  military  court 
martial,  appointed  for  the  trial  of  alleged  delinquencies  in 
that  regiment. 

It  appeared  from  the  return  that  a  summons  was  issued  by 
the  defendant,  as  president  of  the  court-martial,  directed  to 
and  personally  served  on  the  relator,  a  private  in  company 
H  of  the  regiment,  requiring  him  to  appear  before  a  court- 
martial  on  the  fourteenth  February  to  answer  certain  charges 
preferred  against  him  for  failure  to  attend  certain  parades  and 
drills  ;  that  the  relator  appeared  before  the  court  at  the  time 
specified,  and  objected  to  its  jurisdiction,  upon  the  ground 
that  the  provisions  of  the  act  known  as  the  "  Military  Code," 
passed  March  17th,  1870  (Laws  1870,  chap.  30),  under  which 
the  court-martial  was  organized,  or  so  much  thereof  as  pre- 
scribed the  method  of  procedure  and  the  method  of  enforce- 
ment of  the  sentence  were  unconstitutional.  This  objection 
was  overruled,  and  the  relator  thereupon  demanded  permis- 
sion to  appear  by  counsel,  and  that  he  be  tried  by  jury,  and 
that  his  trial  should  be  public.  These  demands  were  refused, 
and  the  relator,  protesting  against  the  jurisdiction  of  the 
court  and  method  of  its  procedure,  declined  to  appear  further, 
and  withdrew. 

Testimony  was  thereupon  taken  before  the  court  tending 
to  establish  his  absence  from  parades  and  drills  as  charged, 
and  he  was  found  guilty  and  fined  therefor  to  the  amount,  in 
the  aggregate,  of  eighteen  dollars.  The  findings  and  sentence 
were  certified  to  the  brigadier-general,  by  whose  order  the 
court  was  held,  and  approved  by  him,  and  thereupon  the 
defendant,  as  president,  &c.,  issued  his  warrant  to  the  mar- 
shal of  the  court,  directing  him  to  levy  and  collect  the  fines, 
with  his  costs,  of  the  goods  and  chattels  of  the  relator,  and, 


46  CASES  IX  THE  SUPREME  COURT          [June, 

The  People  v.  Daniell. 

in  default  thereof,  to  arrest  him  and  convey  him  to  the  county 
jail  and  deliver  him  to  the  jailor. 

II.  E.  Sickels,  for  the  relator.  The  provisions  (act  of  1870, 
chap.  80,  art.  13)  under  which  the  proceedings  were  had  are 
unconstitutional.  (Const.,  art.  6  ;  Matter  of  Albany  St.,  11 
Wend.,  149,  152;  Matter  of  John  and  Cherry  Streets,  19 
Wend.,  659,  676;  Bloodgood  v.  M.  and  II.  R.  R.  Co.,  18 
Wend.,  9,  59 ;  Taylor  v.  Porter  et  al.,  4  Hill,  140,  146 ; 
Barto  v.  Ilimrod,  8  N.  Y.,  483;  Ilaynor  v.  James,  17  id., 
316 ;  §  1,  art.  1,  Const.  N.  Y. ;  2  Kent  Com.,  13 ;  Story  on 
Const.,  661 ;  2  Coke  Inst.,  45,  59  ;  People  v.  Hmdes,  37 
Barb.,  440,  456 ;  WesterveU  v.  Craig,  12  N.  Y.,  212  ;  Wyne- 
hamer  v.  People,  13  N.  Y.,  378,  392,  416 ;  'Rockwell  v. 
Nearing,  35  id.,  302,  305  ;  Matter  of  Townsena,  39  id.,  71, 
180  ;  Ls.  1846,  ch.  139  ;  Doct,  270,  §  89  ;  Wood  v.  City  of 
Brooklyn,  14  Barb.,  482.) 

John  S.  Burrill,  for  the  defendant,  cited  Livingston  v. 
The  Mayor  (8  Wend.,  100) ;  Jackson  v.  Wood  (6  Cow.,  818, 
note) ;  In  re  Smith  (10  Wend.,  449) ;  Lee  v.  Tillotson  (24 
Wend.,  337) ;  Barker  v.  The  Pe^le  (3  Cow.,  686) ;  20  John., 
457  ;  Rathbun  v.  Sawyer  (15  Wend.,  451) ;  Const.  1822,  art. 
7,  §  ,7  ;  Plato  v.  The  People  (3  Parker  Grim.,  386) ;  Wyneka- 
mer  v.  The  People  (13  N.  Y.,  378,  427,  458);  1  Pt.  S.,  1830, 
304-312;  Murphy  v.  The  People  (2  Cow,  815);  Dufyv. 
The  People  (6  Hill,  75) ;  Wood  v.  City  of  Brooklyn  (14 
Barb.,  425  ;  Glider  dove  v.  The  People  (10  id.,  35) ;  In  re 
Empire  City  Bank  (18  N.  Y.,  199);  8  Abb.  Pr.,  192  ;  Leg- 
gett  v.  Hunter  (1 9  N.  Y.,  445) ;  Bank  of  Chenango  v.  Brown 
(26  id.,  467,  529) ;  dark  v.  Miller  (42  Barb.,  255) ;  Luke  v. 
City  (43  Barb.,  54);  2  U.  S.  Stat.  at  Large,  359  ;  Act.  Ap. 
10, 1806 ;  Ex  Parte  MiUigan  (4  Wallace  U.  S.  S.  C.  R,  123). 

Present — BASNARD,  P.  J.,  GILBERT  and  TAPPAN,  J  J. 

By  the  Court — GILBERT,  J.  The  relator  is  a  private  in 
company  IT,  of  the  13th  Regiment  of  the  National  Guard.  He 


18V 1.]  OF  THE  STATE  OF  NEW  YORK.  47 


The  People  «.  Daniell. 


has  sued  out  this  writ  of  certiorari  in  order  to  obtain  a  review 
of  the  proceedings  of  a  court-martial,  organized  and  held  pur- 
suant to  article  13,  of  chapter  80,  of  the  Laws  of  1870,  known 
as  the  Military  Code. 

The  court-martial  adjudged  him  to  have  been  delinquent  in 
not  attending  certain  parades  and  drills  specified  in  the  judg- 
ment, and  sentenced  him  to  be  fined  therefor ;  which  fines, 
in  the  aggregate,  amounted  to  $18.  The  proceedings  and 
sentence  were  duly  approved  by  the  brigadier-general. 
Whereupon  the  respondent,  as  president  of  the  court-martial, 
issued  his  warrant  to  the  marshal,  directing  him  to  levy  and 
collect  said  fines,  with  his  costs,  of  the  goods  and  chattels  of 
the  relator,  and,  in  default  thereof,  to  arrest  the  relator  and 
convey  him  to  the  county  jail  of  the  county  of  Kings.  It 
was  not  disputed  on  the  part  of  the  relator  that  all  these 
proceedings  were  conformable  to  and  authorized  by  said  act 
of  1870,  but  it  was  urged  on  his  behalf  that  the  provisions 
of  said  act,  relating  to  courts-martial,  are  unconstitutional  and 
void. 

With  respect  to  the  merits,  it  was  conceded  that  the  court- 
martial  was  organized  and  proceeded  according  to  the  statute. 
The  first  question  presented  is  whether  courts-martial  are 
authorized  by  the  Constitution.  That  instrument  contains 
no  words  which  expressly  authorize  such  courts.  But  we 
think  the  legislature  has,  irrespective  of  its  general  powers, 
the  specific  power  to  create  them  under  article  nine  of  the 
Constitution.  The  first  section  of  that  article  provides  that 
"the  militia  of  this  State  shall,  at  all  times  hereafter,  be 
armed  and  disciplined  and  in  readiness  for  service."  Thib  is 
a  positive  requirement  of  the  fundamental  law,  and  of  neces- 
sity involves  the  power  of  carrying  it  into  effect.  The  legis- 
lature, therefore,  as  the  supreme  power  of  the  State,  have  the 
authority,  and  it  is  their  duty,  to  pass  appropriate  laws  to 
effectuate  the  object  intended.  They  are  the  exclusive  judges 
of  what  laws  are  proper  for  this  purpose.  It  cannot  be  said 
that  the  provisions  of  the  statute  establishing  courts-martial  and 
regulating  their  proceedings  are  not  fairly  within  this  power. 


48  CASES  IN  THE  SUPREME  COURT         [June 

The  People  t>.  Daniell. 

The  power  to  discipline  the  militia  is  per  se  a  power  to  pro- 
vide for  trial  and  punishment  by  courts-martial,  for  such 
courts  have  always  formed  a  constituent  part  of  the  military 
system  in  this  country  and  in  England.  As  was  said  by  the 
Supreme  Court  of  the  United  States,  in  the  case  of  Mittigan, 
(4  "Wall,  123),  "the discipline  necessary  to  the  efficiency  of  the 
army  and  navy  require  other  and  swifter  modes  of  trial  than 
are  furnished  by  the  common-law  courts ;  and  in  pursuance 
of  the  power  conferred  by  the  Constitution,  congress  has 
declared  the  kinds  of  trial  and  the  manner  in  which  they 
shall  be  conducted  for  offences  committed  while  the  party  is 
in  the  military  or  naval  service.  Every  one  connected  with 
these  branches  of  the  public  service  is  amenable  to  the  juris- 
diction which  congress  has  created  for  their  government." 
The  providing  of  courts-martial,  as  one  of  the  means  of  disci 
pline  for  the  militia,  is  rendered  obligatory  on  the  States  by 
the  legislation  of  congress,  to  which  the  court,  in  the  passage 
quoted,  refers.  For,  by  the  Constitution  of  the  United 
States,  the  power  to  provide  for  organizing,  arming  and  dis- 
ciplining the  militia  is  conferred  upon  congress,  subject 
only  to  the  power  which  is  reserved  to  the  States,  respect- 
ively— namely,  of  appointing  the  officers  and  of  training  the 
militia  according  to  the  discipline  prescribed  by  congress. 
Congress  has  prescribed  this  discipline,  and  in  doing  so  has 
provided  for  courts-martial.  The  States,  in  the  exercise  of 
the  power  reserved  to  them  on  this  subject,  are  bound  to 
conform  to  this  legislation  of  congress.  Congress,  however, 
has  not  made  specific  provisions  for  the  formation  of  courts- 
martial,  or  to  regulate  their  proceedings  when  formed.  The 
only  provision  is,  that  "  courts-martial  for  the  trial  of  militia 
shall  be  composed  of  militia  officers  only."  (Act  of  1795, 
§  6.)  In  the  absence  of  legislation  by  congress,  the  States 
have  full  power  and  jurisdiction  over  this  subject — qualified, 
at  most,  by  the  limitation  that  the  courts,  when  constituted, 
shall  be  military  courts.  (Const.  U.  S.,  art.  1,  §  8,  sub.  15 ; 
Brightley's  Dig.,  619  et  seq. ;  Houston  v.  Moore,  5  Wheat.; 
1 ;  Martin  v.  Mott,  12  id.,  19.) 


1871.]  OF  THE  STATE  OF  NEW  YORK.  49 

The  People  v.  Daniell. 

It  is  contended,  on  behalf  of  the  relator,  that  article  6  of 
the  Constitution  of  this  State,  which  establishes  and  prescribes 
the  courts  of  this  State,  and  authorizes  the  legislature  to  estab- 
lish inferior  local  courts,  has  the  effect  to  prohibit  the  estab- 
lishment of  courts  other  than  those  enumerated,  which 
are  not  local ;  that  courts-martial  are  not  enumerated  and  are 
not  local,  and  are,  therefore,  within  this  prohibition.  We  are 
of  opinion  that  this  article  of  the  Constitution  has  no  refer- 
ence to  military  courts,  but  applies  exclusively  to  courts  of 
civil  judicature.  The  framers  of  the  Constitution,  and  the 
people  who  passed  it,  must  have  known  that  courts-martial 
were  among  the  usual  means  for  the  disciplining  of  the  militia, 
and  had  been  established  by  congress,  and  if  there  had  existed 
a  design  to  prohibit  them,  notwithstanding  the  provision  of 
the  Constitution  of  the  United  States  before  cited,  which 
effectually  excludes  the  power  to  do  so,  we  think  it  would 
have  been  manifested  in  express  words. 

If  the  foregoing  views  are  correct,  it  is  quite  manifest  that 
the  provisions  inserted  in  the  Constitution  of  this  State  and 
of  the  United  States  for  the  protection  of  the  life,  liberty, 
property  and  rights  of  the  citizens  (N.  Y.  Const.,  art.  1,  §§  1, 
6 ;  U.  S.  Const.,  1st  amendment),  have  no  application  to  this 
case. 

Nor  does  the  provision  of  the  Constitution  of  this  State, 
that  "  the  trial  by  jury,  in  all  cases  in  which  it  has  been  here- 
tofore used,  shall  remain  inviolate  forever,"  govern  courts- 
martial,  for  the  reason  that  those  courts  existed  long  prior  to 
the  Constitution,  and  the  trial  by  jury  never  prevailed  or  was 
used  in  them.  Indeed,  such  a  mode  of  trial  would  be  wholly 
incompatible  with  the  object,  end  and  organization  of  courts- 
martial. 

The  only  remaining  objections  brought  to  our  notice  are, 
that  the  trial  of  the  relator  was  not  in  public,  as  required  by 
2  Kevised  Statutes,  274,  section  1,  and  that  he  was  not  allowed 
to  appear  and  defend  with  counsel.  With  respect  to  the 
first  of  these,  it  is  sufficient  to  say  that  the  statute  referred  to  is 
contained  in  part  3  of  the  Eevised  Statutes,  which,  according 

LANSING — VOL.  VI.         7 


50  CASES  IN  THE  SUPREME  COURT  [1872. 

Livingston  v.  Green. 

to  .the  rule  of  interpretation  established  by  the  case  of 
The  People  v.  Molineux  (53  Barb.,  10) ;  S.  C.  (40  K  Y. 
R.,  113),  is  limited  to  courts  and  ministers  of  justice,  and 
proceedings  in  civil  cases,  and  cannot  be  extended  so  as  to 
embrace  military  courts.  The  answer  to  the  last  objection 
is  not  quite  so  plain.  Nevertheless,  we  are  of  opinion  that 
the  proper  construction  of  section  6  of  article  1  of  the  Con- 
stitution, securing  the  right  to  appear  and  defend  with  coun- 
sel, is  that  it  relates  only  to  trials  of  persons  accused  of  crimes 
or  offences  before  the  ordinary  tribunals.  It  cannot  be  sup- 
posed that  this  provision  of  the  Constitution  was  intended  to 
prescribe  any  part  of  the  discipline  of  the  militia,  for  this  is 
required  to  be  according  to  the  discipline  prescribed  by  Con- 
gress, and  Congress  might,  therefore,  at  any  time,  render  the 
constitutional  provision  inoperative.  The  language  of  that 
clause  of  the  section  in  which  the  right  to  defend  with  coun- 
sel is  given  is  appropriate  only  to  criminal  prosecutions,  and 
the  right  itself  is  to  appear  and  defend  as  in  civil  actions. 
The  fair  import  of  this  language  is  to  secure  the  same  right 
to  defend  with  counsel  in  criminal  cases  as  in  civil  actions. 

Upon  the  whole,  we  are  of  opinion  that  the  proceedings 
sought  to  be  reviewed  are  regular  and  valid. 

Judgment  accordingly. 


HENRY  A.   LIVINGSTON  and  others,   Appellants,   v.   DAVID 
GREEN  and  others,  Respondents. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

A  devise  to  testator's  widow  for  life,  "  and  from  and  after  "  her  death  to  all 
his  children  in  equal  shares,  creates  a  vested  remainder  in  fee  in  the  chil- 
dren to  vest  in  possession  on  termination  of  the  life  tenant's  estate. 

AJI  additional  provision,  that  if  any  child  should  die  leaving  heirs,  they 
should  receive  their  parent's  portion,  furnishes  no  evidence  of  intent  that 
the  remainder  should  not  vest. 

Nor  does  an  omission  to  provide  for  the  case  of  any  of  the  children  dying 
without  issue. 


1*72.]  OF  THE  STATE  OF  NEW  YORK.  51 

Livingston  v.  Green. 

THIS  was  an  appeal  from  the  decision  of  the  court  at  Special 
Terra  in  Dutchess  county. 

The  action  was  brought  to  partition  certain  real  estate,  to 
which  the  parties  claimed  title  under  the  will  of  Henry  A. 
Livingston,  deceased. 

It  appeared  that  the  testator  died  in  June,  1849,  seizedof 
the  property  in  question,  and  leaving  a  will  dated  March  3, 
1843,  which  was  duly  proved  before  the  Dutchess  county  sur- 
rogate and  recorded,  and  which,  with  others,  contained  the 
following  provisions : 

"First.  I  order  and  direct  my  executors  and  executrix, 
hereinafter  named,  should  it  be  found  by  them  necessary  for 
the  payment  and  discharge  of  any  debts  or  lawful  charges 
that  may  be  against  me  at  the  time  of  my  death,  or  at  any 
time  thereafter,  should  it  be  required  for  the  support  or 
education  of  my  minor  children,  to  sell  all  or  any  of  my  real 
estate,  wherever  situated,  except  my  mansion  house  and 
farm,  on  which  I  now  live,  in  the  town  of  Poughkeepsie, 
and  which  is  not  to  be  sold,  and  to  give  good  and  sufficient 
deeds  and  conveyances  for  such  other  property  as  they  may 
eell ;  and  should  any  overplus  remain  after  paying  my  debts, 
such  overplus  to  be  paid  to  my  beloved  wife,  Frederica 
Livingston,  to  be  by  her  used  and  expended  for  herself  and 
our  children,  for  their  maintenance  and  education. 
******** 

"  Fourth.  *  *  *  I  give,  devise  and  bequeath  unto 
iny  beloved  wife,  Frederica  Livingston,  all  my  farm,  mes- 
suage and  tenements,  with  the  appurtenances,  situated 
in  the  town  of  Poughkeepsie,  and  county  of  Dutchess, 
on  which  I  now  reside  with  my  family,  and  is  known 
as  my  mansion  farm  and  residence,  on  the  banks  of  the 
Hudson  river,  and  which  was  the  homestead  of  my  grand- 
father, Henry  Livingston,  deceased,  with  all  the  rents, 
issues  and  profits  thereof,  for  and  during  the  term  of  her 
natural  life,  to  be  used  and  occupied  as  she  may  think 
best,  either  as  her  residence,  or  to  let  or  lease  the  same,  the 
better  to  enable  her  to  maintain  herself  and  my  younger 


52  CASES  IN  THE  SUPREME  COURT          [1872. 

Livingston  v.  Green. 

children  by  my  marriage  with  her,  in  such  manner  as  she 
may  determine,  or  at  any  time  during  her  life,  best  calculated 
for  herself  and  their  interest ;  and  that  for  and  during  her 
life  she  shall  not  be  subject  to  any  costs  or  rents,  or  imputa- 
tion of  waste  by  or  from  any  person  or  persons  whatsoever, 
except  the  payment  of  all  lawful  taxes  that  may  from  time  to 
time  be  assessed  on  said  farm. 


"  Sixth.  The  income  of  my  farm  not  being  sufficient  to 
maintain  my  wife  and  support  and  educate  my  younger  and 
minor  children,  I  hereby  give  the  rents  and  yearly  income  of 
all  my  real  estate,  in  houses  and  lands,  wheresoever  situated, 
and  not  sold  by  virtue  of  this  my  will,  to  my  said  wife, 
Frederica  Livingston,  for  the  continuance  of  her  life,  for  the 
support  and  purposes  herein  named. 

"  Seventh.  From  and  after  the  decease  and  death  of  my 
beloved  wife,  Frederica,  I  give  and  bequeath  all  my  real 
estate  then  being,  whatsoever  and  wheresoever,  including  my 
mansion  house  and  farm,  to  all  my  children,  and  to  their  heirs 
and  assigns  forever,  to  be  equally  divided,  share  and  share 
alike.  And  should  any  of  my  children  die  and  leave  lawful 
heirs,  such  heirs  to  receive  the  portion  that  their  parent 
would  have  been  entitled  to,  had  such  parent  lived,  viz.  r 
After  the  death  of  my  beloved  wife,  Frederica,  I  give  to  my 
son,  John  A.  Livingston,  one  equal  share ;  to  my  son,  Abra- 
ham H.  Livingston,  one  equal  share;  to  my  son,  Russell 
Livingston,  one  equal  share;  to  my  daughter,  Louisa  M. 
James,  wife  of  Edward  K.  James,  one  equal  share ;  to  my 
daughter,  Frederica  C.  Livingston,  one  equal  share ;  to  my 
daughter,  Christina  Ten  Brouck  Livingston,  one  equal  share  ; 
to  my  daughter,  Cornelia  Beekman  Livingston,  one  equal 
share ;  to  my  daughter,  Jane  Murray  Livingston,  one  equal 
share  ;  to  my  daughter,  Henrietta  Ulrica  Livingston,  one  equal 
share ;  to  my  son,  Henry  Philip  Livingston,  one  equal  share  ; 

to  my  son,  Augustus  Linlithgo  Livingston,  one  equal  share. 
**»««•*** 

"  Ninth.  On  the  event  happening  of  the  death  of  my  wife, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  53 

Livingston  v.  Green. 

Frederica  Livingston,  and  on  a  division  of  my  estate,  in  equal 
shares  amongst  my  children,  as  named  in  the  seventh  section 
of  this  my  will,  I  hereby  declare  such  shares  to  be  an  estate 
in  fee  to  them  and  their  heirs  or  assigns ;  and  they,  or  either 
of  them,  are  empowered  to  give  good  and  sufficient  deeds  for 
his,  her  or  their  shares  of  my  real  estate." 

A  portion  of  the  premises  in  the  complaint  were  referred  to 
in  the  will  as  the  "  mansion  house  and  farm,"  and  with  the 
other  premises  described  therein  comprised  all  the  real  estate 
of  the  testator  which  remained  unsold  at  the  time  of  the 
death  of  his  widow. 

It  also  appeared  that  the  testator  left  surviving  him  his 
widow  and  eleven  children  mentioned  in  his  will,  and  that 
before  the  decease  of  the  widow  all  but  four  of  such  children 
had  died  intestate  and  otherwise,  leaving  various  children, 
devisees  and  descendants,  who  were  made  parties  to  the 
action,  and  claimed  their  respective  interests  in  the  portions 
of  the  property  devised  by  the  testator  to  their  ancestors,  and 
put  in  their  answers  to  the  complaint. 

The  court  found  the  following  conclusions  of  law,  viz. : 
"  That  on  the  death  of  Henry  A.  Livingston  each  of  his  said 
children  then  living,  by  virtue  of  and  under  the  provisions  of 
his  will,  became  seized  in  fee  of  an  undivided  one-eleventh 
of  the  premises  described  in  the  complaint,  subject  to  the  life 
estate  therein  of  Frederica  C.  Livingston,  the  widow  of  said 
deceased,"  and  that  the  several  devisees  and  heirs-at-law  of 
the  children  of  the  testator,  who  were  deceased  at  the  death 
of  the  widow,  were  seized  and  entitled  to  their  interests 
therein  of  their  respective  ancestors  or  testators. 

There  were  also  certain  special  finding*  of  law  not  essen- 
tial to  an  understanding  of  the  decision  here. 

The  plaintiff  and  others  appealed. 

Ndson  &  Baker  for  appellants. 

J.  8.  Van  Chef,  S.  W.  Buck,  Sanford  &  Woodruff  and, 
Emott  &  Taylor  for  various  other  parties. 

Present — GILBERT  and  TAPPEN,  JJ. 


54  CASES  IN  THE  SUPREME  COURT          [1872. 

Livingston  v.  Green. 

By  the  Court — GILBERT,  J.  The  language  of  the  will  in 
this  case  is  plain  and  well  chosen  for  the  purpose  indicated. 
The  testator  gave  his  wife  an  estate  during  her  life,  and  to 
his  children,  each,  a  vested  remainder  in  fee  in  one  eleventh 
part  of  his  estate,  which  should  vest  in  possession  upon  the 
termination  of  the  life  estate  of  his  widow.  As  all  the  children 
survived  the  testator,  the  provision  that  the  children  of  a 
deceased  child  should  take  the  share  their  parent  would  have 
taken  never  took  effect. 

It  is  hardly  disputed  that  such  is  the  legal  effect  of  the 
language  employed,  but  the  appellants  contend  that  the 
whole  will  manifests  an  intention  on  the  part  of  the  testator 
that  his  estate  should  not  vest  in  his  children  until  the  death 
of  his  widow,  and  that  the  children  then  living  should  take 
as  survivors,  the  issue  of  a  deceased  child  taking  a  parent's 
share. 

The  will  contains  no  language  adapted  to  make  such  a 
disposition.  The  devise  is  "to  all  my  children  and  their 
heirs  and  assigns."  He  then  repeats  the  gift  to  his  children, 
naming  them,  and  specifies  the  share  each  is  to  take,  namely, 
one  equal  share.  In  the  last  sentence,  the  words  "  heirs  and 
assigns  "  are  omitted.  Taking  the  gift  in  either  form,  how- 
ever, it  is  the  same  in  legal  effect,  for  the  term  heirs  or  other 
words  of  inheritance  are  not  requisite  to  create  an  estate  in 
fee.  The  devise,  then,  is  to  the  testator's  wife  during  her 
life,  and  after  her  death  to  his  children,  each  one  share.  No 
more  apt  words  could  have  been  chosen  to  create  a  vested 
remainder  in  fee  in  the  children.  The  words  "  from  and  after 
the  death  of  my  wife "  do  not  make  a  contingency,  but 
merely  point  to  the  time  when  the  estate  is  actually  to  vest 
in  possession.  The  provision  for  the  children  of  a  deceased 
child  was  probably  inserted  because  the  testator  thought  it 
was  necessary  to  prevent  a  lapse.  At  common  law  it  would 
have  been  necessary  for  that  purpose,  but  the  rule  has  been 
changed  by  statute.  (2  E.  S.,  66,  §  52.)  But  whatever  the 
object  was,  it  furnishes  no  evidence  of  an  intention  that  the 
devise  of  the  remainder  should  not  vest  at  the  death  of  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  55 

Livingston  v.  Green. 

testator.  To  give  the  will  that  effect,  we  should  have  to 
interpolate  into  it,  after  the  words  "  should  any  of  my  chil- 
dren die,"  the  words  "  after  my  decease  and  before  the  ter- 
mination of  the  estate  given  to  my  wife  "  or  the  like,  which 
is  not  admissible.  Nor  is  there  any  special  significance  in 
the  fact  that  the  testator  omitted  to  provide  for  the  contin- 
gency of  any  of  his  children  dying  without  issue,  for  the 
only  effect  of  such  an  event  would  have  been  to  enlarge  the 
shares  of  the  children  who  survived  the  testator,  or  in  case 
the  child  who  died  left  a  descendant  to  vest  the  share  of  such 
child  in  such  descendant.  It  is  claimed,  also,  that  the  share 
which  the  testator  gave  to  any  of  his  children  was  liable  to 
be  divested  on  such  child's  dying  without  leaving  lawful  issue 
surviving  at  his  death.  But  such  an  effect  could  not  be 
produced  without  a  radical  alteration  in  the  language  of  the 
will.  It  would  be  necessary  to  change  the  gift  to  the  chil- 
dren from  an  absolute  gift  of  a  remainder  in  fee,  into  a  gift 
to  them  during  their  lives,  and  after  their  decease  to  their 
heirs  and  assigns.  This,  according  to  the  doctrine  of  Moore 
v.  Littel  (41  N.  Y.,  66),  would,  if  the  same  effect  should  be 
given  to  a  devise  as  to  a  grant,  make  a  vested  remainder  in 
each  of  the  grandchildren  of  the  testator,  which  would  be 
liable  to  be  divested  by  their  death  before  that  of  their 
parents,  and  the  several  shares  of  the  estate  would,  upon  the 
death  of  the  widow,  and  the  life  tenants  of  such  shares  respec- 
tively vest  in  the  grandchildren  then  living,  according  to  the 
shares  given  to  their  parents  respectively. 

The  will  of  the  testator  does  not  admit  of  such  a  construc- 
tion, and  we  could  not  give  it  that  effect  without  making  a 
new  will  for  him. 

We  are  unable  to  perceive  that  the  ninth  clause  in  the  will 
makes  any  change  in  the  legal  import  and  effect  of  the  seventh 
clause.  There  could  not,  in  the  nature  of  things,  be  any 
actual  enjoyment  by  the  devisees  in  remainder  of  their 
separate  shares  during  the  life  of  the  widow.  But  this  is 
evidently  the  kind  of  enjoyment  which  the  testator  meant  by 
the  term  "  division  of  my  estate."  When,  therefore,  the  testa- 


56  CASES  IN  THE  SUPREME  COURT  [1872. 

Carpentier  «.  Minturn. 

tor  referred  to  a  division  of  his  estate  among  his  children,  as 
named  in  the  seventh  section,  he  intended  to  embrace  all  the 
beneficiaries  therein  mentioned.  The  provision  in  the  seventh 
section,  that  the  heirs  of  a  deceased  child  should  take  the 
share  of  their  parent,  is,  by  a  settled  rule  of  interpretation, 
restricted  to  heirs  of  the  body,  and  such  heirs  may  properly 
be  included  in  the  meaning  of  the  word  children  as  used  in 
the  ninth  clause.  Nor  can  any  different  effect  be  given  to 
the  phrase  "  on  the  event  happening  of  the  death  of  my  wife," 
in  the  ninth  clause,  than  to  the  like  phrase  in  the  seventh 
clause.  Both  have  the  same  meaning,  and  point  only  to  the 
time  when  the  actual  enjoyment  of  the  estates  in  remainder 
shall  begin.  Upon  the  whole,  we  see  no  reason  to  doubt  that 
the  court  below  put  the  right  construction  upon  the  will,  and 
we  are  unable  to  discover  any  general  or  particular  intention 
of  the  testator  which  that  construction  would  defeat.  , 
The  judgment  is,  therefore,  affirmed  with  costs. 


HORACE  W.  CAEPENTIEE,  Respondent,  v.  CHAELES  MINTUKNT, 

Appellant. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

A  foreign  statute  of  limitation  is  not  a  bar  to  an  action  here. 

To  a  complaint  on  promissory  notes,  the  defendant  set  up  in  defence  a  fail- 
ure of  consideration,  for  the  reason  that  the  notes  were  given  for  exclu- 
sive ferry  rights  which  the  payee  held  under  a  city  ordinance,  which 
proved,  upon  judicial  determination,  ultra  vires  of  the  city  corporation. 
Held,  no  defence,  and  demurrable  for  that  reason. 

Also,  that  the  mistake  of  the  vendor  and  vendee  was  in  regard  to  a  gene- 
ral law  of  the  land. 

THIS  was  an  appeal  by  the  defendant  from  an  order  at 
Special  Term  in  Kings  county,  sustaining  a  demurrer  to  parts 
of  the  defendant's  answer. 

The  complaint  was  on  two  promissory  notes  for  $500  each, 
and  interest  at  the  rate  of  three  per  centum  per  month,  seve- 


3872.]  OF  THE  STATE  OF  NEW  YORK.  57 

Carpentier  v.  Minturn. 

rally  bearing  date  April  14,  1858,  and  made  at  San  Francisco, 
California,  by  the  defendant  and  others,  jointly  and  severally, 
to  the  plaintiff'. 

The  complaint  averred  that  a  statute  of  the  State  of  Cali- 
fornia, of  April  13,  1850,  authorized  contracts  in  writing  for 
the  payment  of  any  stipulated  rate  of  interest  on  money  due 
or  to  become  due,  and  that,  under  this  statute,  judgment 
upon  such  an  agreement  should  conform  to  the  rate  of  inte- 
rest provided  for  thereby,  and  that  the  notes  were  made  and 
delivered  pursuant  to  such  statute. 

The  defendant  admitted  the  execution  and  delivery  of  the 
notes  as  alleged  ;  denied  knowledge  or  information  sufficient 
to  form  a  belief  whether  they  were  correctly  described  in  the 
complaint ;  also  as  to  the  alleged  statute  of  California,  and 
delivery  of  the  notes  pursuant  thereto,  and  the  ownership  of 
the  notes ;  it  denied  that  the  notes  were  valid  contracts,  and 
the  defendant's  liability  thereon,  set  up  the  statute  of  limita- 
tions, and  also  the  following  as  defences  to  the  action,  viz. : 

"  Third.  And  as  a  separate  and  distinct  defence  to  the  said 
complaint,  this  defendant  alleges  that  the  said  promissory 
notes  were  made,  executed  and  delivered  to  the  said  plaintiff 
by  this  defendant  and  the  Contra  Costa  Steam  Navigation 
Company,  under  a  certain  sale  and  assignment,  or  indenture, 
made  the  21st  day  of  October,  1854,  by  and  between  the  said 
plaintiff  and  Edward  R.  Carpentier  and  Harriet  N".  Carpen- 
tier, of  the  first  part,  and  this  defendant  and  the  Contra  Costa 
Steam  Navigation  Company,  of  the  second  part,  whereby  the 
said  parties  of  the  first  part  granted,  bargained,  sold  and 
assigned  unto  the  said  parties  of  the  second  part,  their  legal 
representatives  and  successors,  or  assigns,  for  the  term  of 
twenty  years,  from  the  twelfth  day  of  March,  1853,  all  the 
exclusive  right  and  privilege  of  landing  with  steam  ferry- 
boats running  between  the  city  of  Oakland  and  the  city  of 
San  Francisco,  or  between  the  said  city  of  Oakland  and  any 
other  place,  at  any  wharf  or  landing  which  then  was  or  might 
thereafter  be  constructed  in  said  city  of  Oakland,  which  the 
said  parties  of  the  first  part,  or  either  of  them,  may  have 

LANSING — VOL.  VI.         8 


58  CASES  IN  THE  SUPREME  COURT          [1872. 

Carpentier  v.  Minturn. 

acquired  or  were  entitled  to,  by  virtue  of  any  ordinance  of  the 
board  of  trustees  of  the  town  of  Oakland,  or  of  any 
deed  or  conveyance,  contract  or  grant,  from  said  town, 
and  particularly  a  certain  contract  for  the  establishing 
and  maintaining  a  public  ferry  between  the  said  city 
of  Oakland  and  the  said,  city  of  San  Francisco,  or  between 
the  said  city  of  Oakland  and  any  other  place,  entered 
into  between  the  said  Edward  R.  Carpentier  and  the 
said  town  of  Oakland,  on  the  twelfth  day  of  March, 
1853 ;  together  with  all  his  rights,  privileges  and  franchises, 
and  interest,  under  and  by  virtue  of  said  contract,  and  of  a 
certain  ordinance  of  the  board  of  trustees  of  the  town  of 
Oakland,  passed  the  fifth  day  of  March,  1853,  and  entitled 
'  An  ordinance  to  create  a  public  ferry  between  the  town  of 
Oakland  and  the  city  of  San  Francisco,  and  to  provide  for 
keeping  up  and  running  the  same ;'  and  also  all  his  right, 
title  and  interest  in  the  ferry  then  in  operation,  under  said 
ordinance  and  contract,  a  copy  of  which  said  ordinance  and 
contract  are  hereto  annexed  as  part  of  this  answer,  and 
marked  A  and  B,  and  for  no  other  consideration  whatever; 
which  said  ordinance  was  made  under  and  by  virtue  of  the 
third  section  of  an  act  of  the  legislature  of  the  State  of 
California,  entitled  '  An  act  to  incorporate  the  town  of  Oak- 
land, and  to  provide  for  the  construction  of  wharves  thereat,' 
approved  May  4,  1852,  and  which  is  as  follows,  to  wit :  '  That 
the  board  of  trustees  shall  have  power  to  make  such  by-laws 
and  ordinances  as  they  may  deem  fit,  proper  and  necessary  to 
regulate,  improve,  sell  and  otherwise  dispose  of  the  common 
property,  to  prevent  and  extinguish  fires,  to  lay  out,  make, 
open,  widen,  regulate  and  keep  in  repair,  all  streets,  roads, 
bridges,  ferries,  public  places  and  grounds,  wharves,  docks, 
piers,  slips,  rivers,  wells  and  alleys,  to  authorize  the  construc- 
tion of  the  same;  and  with  a  view  to  facilitate  the  construc- 
tion of  wharves  and  other  improvements,  the  lands  lying 
within  the  limits  aforesaid,  between  high  tide  and  ship  chan- 
nel, are  hereby  granted  and  released  to  said  town  ;'  and  this 
defendant  alleges  that  the  said  contract  and  ordinance,  so  sold 


1872.]  OF  THE  STATE  OF  NEW  YORK.  59 

Carpentier  v.  Minturn. 

and  assigned  to  him  as  aforesaid,  and  for  the  assignment  oi 
which  to  him,  as  aforesaid,  the  promissory  notes  set  forth  in 
the  said  complaint  were  given  by  this  defendant,  as  aforesaid, 
were  wholly  null  and  void. 

That  the  said  board  of  trustees  had  no  lawful  power  or 
authority  to  make  said  contract,  or  to  make  or  pass  said  ordi- 
nance. That  they  did  not  convey  or  give  to  the  holders  or 
owners  thereof  any  right  or  title  to  the  exclusive. right  or  title 
and  privilege  of  landing  with  steam  ferry  boats  running 
between  the  said  city  of  Oakland  and  the  said  city  of  San 
Francisco,  or  between  the  said  city  of  Oakland  and  any  other 
place,  at  any  wharf  or  landing  which  then  was  or  might  there- 
after be  constructed  in  said  city  of  Oakland ;  and  that  the 
said  third  section  of  said  act  of  the  Legislature  of  the  State 
of  California,  under  and  by  virtue  of  which  the  said  ordinance 
was  passed  and  said  contract  was  made,  so  far  as  it  undertook 
to  grant  said  exclusive  right  or  privilege  of  ferriage  as  afore- 
said, was  repugnant  to  and  in  violation  of  the  provisions  of 
the  Constitution  of  the  United  States,  and  was  utterly  null 
and  void. 

"  And  the  defendant  further  alleges,  that  said  third  section 
of  said  act  of  the  legislature  of  the  State  of  California  did 
not  authorize  said  board  of  trustees  to  make  said  contract,  or 
to  make  or  pass  said  ordinance.  That  said  town  of  Oakland 
did  not  own  any  of  said  ferry  rights  or  privileges,  and  said 
contract  and  said  ordinance  were  made  by  said  board  of  trus- 
tees without  any  power  or  authority  whatever,  and  the  same 
were  null  and  void. 

"That  said  Edward  R.  Carpentier  had  no  right,  title  or 
interest  in  said  ferry  then  in  operation,  and  that  said  notes, 
in  consequence  thereof,  were  given  to  the  said  plaintiff  by  the 
defendants  and  the  said  Contra  Costa  Steam  Navigation 
Company,  without  receiving  any  consideration  for  the  same 
whatever. 

"  Fourth.  And  for  a  separate  and  distinct  defence  to  the 
said  complaint,  this  defendant  alleges  that  by  an  act  of  the 
legislature  of  the  State  of  California,  entitled  'An  act 


60  CASES  IN  THE  SUPREME  COURT  [1872. 

Carpentier  v.  Minturn. 

defining  the  time  for  the  commencing  civil  actions,'  passed 
April  22,  1850,  it  was  enacted  by  chapter  3,  section  17,  of 
the  same,  '  that  an  action  upon  any  contract,  obligation  or 
liability,  founded  upon  an  instrument  in  writing,  excepting 
upon  a  judgment  or  decree  of  any  court  of  the  United  States, 
or  of  any  State  or  Territory  within  the  United  States,  shall 
be  commenced  within  four  years  from  the  time ;'  and  this 
defendant  alleges  that  the  alleged  causes  of  action,  set  forth 
in  said  complaint,  did  not  accrue  within  four  years  before  the 
commencement  of  this  action. 

"  Fifth.  And  for  a  separate  and  distinct  defence,  and  as  a 
counter-claim  to  the  said  complaint,  this  defendant  alleges 
that  after  the  making  of  the  said  assignment  of  said  exclu- 
sive right  or  privilege  of  ferriage  by  the  plaintiff  and  the  said 
Edward  R.  Carpentier  and  the  said  Harriet  N.  Carpentier  to 
the  defendant  and  the  said  Contra  Costa  Steam  Navigation 
Company,  above  referred  to,  the  plaintiff  demanded,  exacted 
and  received,  for  said  pretended  exclusive  right  of  ferriage, 
from  the  defendant,  at  sundry  times  between  the  second  day 
of  August,  1856,  and  the  fourth  day  of  October,  1858,  divers 
sums  of  money,  to  wit : "  (setting  forth  a  list  of  payments) 
"amounting  in  the  aggregate  to  thirteen  thousand  and  fifty- 
eight  dollars  and  fifty-one  cents  ($13,058.51)  in  gold  coin 
of  the  United  States,  and  this  defendant  paid  said  plaintiff 
said  several  sums  of  money  for  said  assignment  of  said  con- 
tract, and  said  ordinance,  copies  of  which  are  hereto  annexed, 
as  above  set  forth,  pretending  to  grant  said  exclusive  right  of 
ferriage 'under  the  third  section  of  said  act  of  the  legislature 
of  the  State  of  California,  approved  May  4,  1852.  And  this 
defendant  paid  said  plaintiff  said  several  sums  of  money  for 
no  other  consideration  whatever. 

"  And  this  defendant  further  alleges  that  said  contract  and 
said  ordinance  so  sold  and  assigned  to  him  as  aforesaid,  and 
for  the  assignment  of  which  to  him  said  money  was  paid  as 
aforesaid,  were  wholly  null  and  void. 

"  That  the  said  board  of  trustees  had  no  lawful  power  or 
authority  to  make  said  contract  or  to  make  or  pass  said 


OF  THE  STATE  OF  NEW  YORK.  61 

Carpentier  0.  Minturn, 

ordinance.  That  they  did  not  convey  or  give  to  the  holders 
and  owners  thereof  any  right  or  title  to  the  exclusive  right 
and  privilege  of  landing,  with  steam  ferry-boats  running 
between  the  said  city  of  Oakland  and  the  said  city  of  San 
Francisco,  or  between  the  said  city  of  Oakland  and  any  other 
place,  at  any  wharf  or  landing  which  then  was  or  might 
thereafter  be  constructed  in  said  city  of  Oakland  ;  and  that  the 
said  third  section  of  the  said  act  of  the  legislature  of  the  State 
of  California,  under  and  by  virtue  of  which  the  said  ordi- 
nance was  passed  and  said  contract  was  made,  so  far  as  it 
undertook  to  grant  said  exclusive  right  or  privilege  of  ferriage 
as  aforesaid,  was  repugnant  to  and  in  violation  of  the  pro- 
visions of  the  Constitution  of  the  United  States,  and  utterly 
null  and  void. 

"  And  the  defendant  further  alleges  that  said  third  section 
of  said  act  of  the  legislature  of  the  State  of  California  did 
not  authorize  said  board  of  trustees  to  make  said  contract  or 
to  make  or  pass  said  ordinance ;  that  said  town  of  Oakland 
did  not  own  any  of  said  ferry  rights  or  privileges,  and  said 
contract  and  said  ordinance  were  made  by  said  board  of  trus- 
tees without  any  power  or  authority  whatever,  and  the  same 
were  null  and  void ;  that  said  Edward  R.  Carpentier  had  no 
right,  title  or  interest  in  said  ferry  then  in  operation,  and 
said  several  sums  of  money  were  paid  by  this  defendant  to 
the  said  plaintiff,  as  aforesaid,  without  this  defendant  receiving 
any  consideration  therefor  whatever. 

"  And  the  defendant  further  alleges  that  when  said  assign- 
ment or  indenture  was  made  and  delivered  to  this  defendant 
as  aforesaid,  and  when  the  said  plaintiff  demanded,  exacted 
and  received  said  several  sums  of  money  of  this  defendant  as 
aforesaid,  this  defendant  supposed  and  believed  that  said 
assignment  of  said  contract  and  said  ordinance  gave  to 
this  defendant  the  exclusive  right  or  title  and  privilege  of 
landing,  with  steam  ferry-boats  running  between  the  said 
city  of  Oakland  and  the  said  city  of  San  Francisco,  or  between 
the  said  city  of  Oakland  and  any  other  place,  at  any  wharf 
or  landing  which  then  was  or  might  thereafter  be  constructed 


62  CASES  IN  THE  SUPREME  COURT          [1372. 

Carpentier  v.  Minturn. 

in  said  city  of  Oakland  ;  and  this  defendant  paid  said  plaintiff 
said  several  sums  as  aforesaid  under  said  supposition  and 
belief,  and  in  ignorance  of  the  facts  that  the  said  plaintiff 
and  the  said  Edward  R.  Carpentier  and  Harriet  N.  Carpen- 
tier had  no  right  to  said  exclusive  privilege  of  ferriage  or  to 
convey  the  same,  and  that  said  contract  and  said  ordinance 
were  wholly  null  and  void,  and  that  said  third  section  of 
said  act  of  the  legislature  of  the  State  of  California,  so  far  as 
it  undertook  to  grant  said  exclusive  right  or  privilege  of 
ferriage  as  aforesaid,  was  contrary  to  the  provisions  of  the  Con- 
stitution of  the  United  States,  and  without  any  force  or  effect 
whatever ;  and  that  said  town  of  Oakland  was  not  the  owner 
of  said  ferry  rights,  and  that  said  board  of  trustees  had  n< 
power  or  authority  to  make  said  contract  or  to  make  am1 
pass  said  ordinance ;  otherwise,  the  defendant  would  not  have 
paid,  or  undertaken  to  pay,  said  several  sums  of  money  to  the 
said  plaintiffs,  nor  either  of  them ;  and  this  defendant  was 
ignorant  of  the  facts  above  set  forth  as  aforesaid,  and  acted 
under  the  supposition  and  belief  as  aforesaid  set  forth,  and 
continued  ignorant  of  said  facts  until  after  the  payment  of 
said  sum  of  money  as  aforesaid,  when  it  was  adjudged  by  the 
Circuit  Court  of  the  United  States  for  the  district  of  Cali- 
fornia, at  the  July  term  thereof,  in  the  year  1858,  in  a  certain 
case  wherein  Edward  Minturn  was  the  plaintiff  and  one 
Larue  and  others  were  the  defendants,  that  said  contract  and 
said  ordinance  did  not  confer  an  exclusive  right  or  privilege 
of  ferriage  as  aforesaid,  and  that  said  town  of  Oakland  had 
no  power  to  grant  said  exclusive  right  of  ferriage,  and  that 
said  third  section  of  said  act  of  the  legislature  of  the  State  of 
California  did  not  grant  said  exclusive  right  or  privilege  of 
ferriage  as  aforesaid,  and,  so  far  as  it  undertook  so  to  do,  was 
contrary  to  the  provisions  of  the  Constitution  of  the  United 
States,  and  without  any  force  or  effect  whatever ;  which  said 
judgment  of  said  Circuit  Court  of  said  district  of  California 
was  afterward  in  all  things  affirmed  by  the  Supreme  Court 
of  the  United  States,  at  the  December  term  thereof,  in  the 
year  1859 ;  that  by  an  act  of  the  legislature  of  the  State  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  63 

Carpentier  v.  Minturu. 

California,  passed  March  13,  1850,  entitled  'An  act  to  regu- 
late the  interest  of  money,'  and  which  is  still  in  full  force 
and  effect,  it  was  provided  by  the  first  section  of  said  act : 
'  "When  there  is  no  express  contract  in  writing,  fixing  a  differ- 
ent rate  of  interest,  interest  shall  be  allowed  at  the  rate  of 
ten  per  cent  per  annum  for  money  received  to  the  use  of 
another.' 

"And  this  defendant  further  says  that  said  assignment,  con- 
tract and  ordinance  were  made  in  the  State  of  California,  and 
said  moneys  demanded,  exacted  and  received  by  said  plaintiff 
from  the  said  defendant  were  demanded,  exacted  and 
received  as  aforesaid,  from  the  defendant,  in  said  State  of 
California,  and  by  reason  thereof  the  said  plaintiff  became 
liable  to  pay  said  money  to  this  defendant,  in  said  State  of 
California,  with  the  interest  thereon  as  expressed  in  said 
statute  of  the  State  of  California,  as  above  set  forth. 

"Sixth.  And  for  a  separate  and  distinct  defence,  and  as  a 
counter-claim  to  the  said  complaint,  this  defendant  alleges, 
upon  his  information  and  belief,  that  on  or  about  the  month 
of  May,  1852,  the  said  plaintiff  and  one  A.  Moon  entered 
into  a  contract  with  William  N.  Brown,  of  the  same  purport 
and  effect  as  said  indenture  or  assignment  made  between  the 
plaintiff,  Edward  R.  Carpentier  and  Harriet  N.  Carpentier,  of 
the  first  part,  and  the  said  defendant  and  said  Contra  Costa 
Steam  Navigation  Company,  of  the  second  part,  whereby  the 
said  plaintiff  and  the  said  A.  Moon  granted  and  conveyed  said 
exclusive  right  and  privilege  of  ferriage  to  said  William  N. 
Brown,  under  said  contract  and  ordinance,  marked  exhibits  A 
and  B,  which  said  contract,  made  by  said  plaintiff  and  said  A. 
Moon,  said  William  N.  Brown  immediately  thereafter  sold, 
assigned,  transferred  and  set  over  to  this  defendant  and  said 
Contra  Costa  Steam  Navigation  Company,  which  said  com- 
pany was  owned  by  this  defendant. 

"And  this  defendant  further  alleges  that,  after  the  making 
the  said  assignment,  by  the  said  Brown,  to  this  defendant 
and  said  company,  the  plaintiff  demanded,  exacted  and 
received  for  said  pretended  exclusive  right  or  privilege  of 


64  CASES  IN"  THE  SUPREME  COURT          [1872. 

Carpentier  «.  Minturn. 

ferriage  from  this  defendant,  by  virtue  of  said  contract 
made  by  said  plaintiff  and  said  A.  Moon  with  said  Brown, 
a  certain  promissory  note  for  $9,000,  dated  San  Francisco, 
May  1,  1856,  signed  by  this  defendant,  by  W.  B.  Min- 
turn, his  attorney,  and  by  the  said  W.  B.  Minturn  and 
Horatio  N.  Squires,  which  said  promissory  note  this  defend- 
ant states,  upon  his  information  and  belief,  was  delivered  to 
the  said  plaintiff  by  his  said  attorney,  and  said  plaintiff  there- 
after demanded,  exacted  and  received,  from  this  defendant, 
divers  sums  of  money,  between  the r  first  day  of  November, 

1856,  and  the  fourteenth  day  of  June,   1858,  for  said  pre- 
tended exclusive  right  and  privilege  of  ferriage,  on  account 
of  said  promissory  note,  as  follows,  to  wit : 

"  November  6, 1856,  $2,250  ;  May  4, 1857,  $1,000  ;  May  12, 

1857,  $400  ;  May  22,  1857,  $50 ;  March  24,  1858,  $2,250 ; 
and  June  16,  1858,  $1,000  ;  making  in  the  aggregate  the  sum 
of  $7,750  in  gold  coin  of  the  United  States ;  and  this  defend- 
ant paid  said  plaintiff  said  several  sums  of  money  for  said 
assignment  of  said  contract   and  said  ordinance,  copies   of 
which  are  hereto  annexed,  as  above  set  forth,  pretending  to 
grant   said   exclusive  right  of  ferriage  under  the  said  third 
section  of  the  act  of  the  legislature  of  the  State  of  California, 
approved  May,  1852;    and  this  defendant  paid  said  plain- 
tiff said  several  sums  of  money  for  no  other  consideration 
whatever. 

"And  this  defendant  further  alleges  that  said  contract  and 
said  ordinance  so  sold  and  assigned  to  him  as  aforesaid,  and 
for  the  assignment  of  which  to  him  said  money  was  paid  as 
aforesaid,  were  wholly  null  and  void.  That  the  said  board  of 
trustees  had  no  lawful  power  or  authority  to  make  said  con- 
tract, or  to  make  or  pass  said  ordinance ;  that  they  did  not 
convey  or  give  to  the  holders  and  owners  thereof  any  right  or 
title  to  the  exclusive  right  and  privilege  of  landing  with  steam 
ferry-boats  running  between  the  said  city  of  Oakland  and  the 
said  city  of  San  Francisco,  or  between  the  said  city  of  Oak- 
land and  any  other  place,  at  any  wharf  or  landing  which  then 
was  or  might  thereafter  be  constructed  in  said  city  of  Oak 


1872.]  OF  THE  STATE  OF  NEW  YORK.  65 

Carpentier  v.  Minturu. 

land  ;  and  that  the  said  third  section  of  said  act  of  the  legis- 
lature of  the  State  of  California,  under  and  by  virtue  of  which 
said  ordinance  was  passed  and  said  contract  was  made,  so  far 
as  it  undertook  to  grant  said  exclusive  right  or  privilege  of 
ferriage  as  aforesaid,  was  repugnant  to  and  in  violation  of  the 
Constitution  of  the  United  States,  and  utterly  null  and  void. 

"  And  the  defendant  further  alleges  that  said  third  section  of 
said  act  of  the  legislature  of  the  State  of  California  did  not 
authorize  said  board  of  trustees  to  make  said  contract,  or  to 
make  or  pass  said  ordinance ;  that  said  town  of  Oakland  did 
not  own  any  of  said  ferry  rights  or  privileges ;  and  said  con- 
tract and  said  ordinances  were  made  by  said  board  of  trustees 
without  any  power  or  authority  whatever,  and  the  same  were 
null  and  void ;  that  said  Edward  R.  Carpentier  had  no  right, 
title  or  interest  in  said  ferry  then  in  operation,  and  said  seve- 
ral sums  of  money  were  paid  by  this  defendant  to  the  said 
plaintiff  as  aforesaid,  without  this  defendant  receiving  any 
consideration  for  the  same  whatever. 

"And  the  defendant  further  alleges  that  when  said  assign- 
ment or  indenture  was  made  and  delivered  to  this  defendant 
as  aforesaid,  and  when  the  said  plaintiff  dpmanded,  exacted 
and  received  said  several  sums  of  money  of  this  defendant  as 
aforesaid,  this  defendant  supposed  and  believed  that  said 
assignment  of  said  contract  and  said  ordinance  gave  to 
this  defendant  the  exclusive  right  or  title  and  privilege  of 
landing  with  steam  ferry-boats  running  between  the  said  city 
of  Oakland  and  the  said  city  of  San  Francisco,  or  between  the 
said  city  of  Oakland  and  any  other  place,  at  any  wharf  or 
landing  which  then  was  or  might  thereafter  be  constructed 
in  said  city  of  Oakland ;  and  this  defendant  paid  said  plaintiff 
said  several  sums  as  aforesaid,  under  said  supposition  and 
belief,  and  in  ignorance  of  the  facts  that  the  said  plaintiff' and 
the  said  Edward  R.  Carpentier  and  the  said  Harriet  N.  Car- 
pentier had  no  right  to  said  exclusive  privilege  of  ferriage,  or 
to  convey  the  same ;  and  that  said  contract  and  said  ordi- 
nances were  wholly  null  and  void ;  and  that  said  third  section 
of  said  act  of  the  legislature  of  the  State  of  California,  so  fai 

LANSING  —  VOL.  VL       9 


66  CASES  IN  THE  SUPREME  COURT         [1872 

Carpentier  v.  Minturn. 

as  it  undertook  to  grant  said  exclusive  right  or  privilege  ot 
ferriage  as  aforesaid,  was  contrary  to  the  provisions  of  the 
Constitution  of  the  United  States,  and  without  any  force  or 
effect  whatever ;  and  that  said  town  of  Oakland  was  not  the 
owner  of  said  ferry  rights,  and  that  said  board  of  trustees  had 
no  power  or  authority  to  make  said  contract,  or  to  make  and 
pass  said  ordinance ;  otherwise  this  defendant  would  not  have 
paid,  or  undertaken  to  pay,  said  several  sums  of  money  to  the 
said  plaintiff,  nor  either  of  them ;  and  this  defendant  was 
ignorant  of  the  facts  above  set  forth  as  aforesaid,  and  acted 
under  the  supposition  and  belief  as  aforesaid  set  forth,  and 
continued  ignorant  of  said  facts  until  after  the  payment  of 
said  sums  of  money  as  aforesaid,  when  it  was  adjudged  by 
the  Circuit  Court  of  the  United  States  for  the  district  of 
California,  at  the  July  term  thereof,  in  the  year  1858,  in  a 
certain  action  wherein  Edward  Minturn  was  the  plaintiff  and 
one  Lame  and  others  were  the  defendants,  that  said  contract 
and  said  ordinance  did  not  confer  an  exclusive  right  or  privi- 
lege of  ferriage  as  aforesaid,  and  that  said  town  of  Oakland 
had  no  power  to  grant  said  exclusive  right  of  ferriage,  and 
that  said  third  section  of  said  act  of  the  legislature  of  the 
State  of  California  did  not  grant  said  exclusive  right  or  privi- 
lege of  ferriage  as  aforesaid,  and,  so  far  as  it  undertook  so  to 
do,  was  contrary  to  the  provisions  of  the  Constitution  of  the 
United  States,  and  without  any  force  or  effect  whatever; 
which  said  judgment  of  said  Circuit  Court  of  said  district 
of  California  was  afterward,  in  all  things,  affirmed  by  the 
Supreme  Court  of  the  United  States,  at  the  December  term 
thereof,  in  the  year  1859. 

"  That,  by  an  act  of  the  legislature  of  the  State  of  Cali- 
fornia, passed  March  13,  1850,  entitled  'An  act  to  regulate 
the  interest  of  money,'  and  which  is  still  in  full  force  and 
effect,  it  was  provided  by  the  first  section  of  said  act,  '  when 
there  is  no  express  contract  in  writing  fixing  a  different  rate 
of  interest,  interest  shall  be  allowed  at  the  rate  of  ten  per 
cent  per  annum  for  any  money  received  to  the  use  of 
another.' 


1872.]  OF  THE  STATE  OF  NEW  YORK.  67 

Carpentier  v.  Minturn. 

"And  this  defendant  further  says  that  said  assignment,  con- 
tract and  ordinance  were  made  in  the  State  of  California,  and 
said  money  demanded,  exacted  and  received  by  the  said 
plaintiff  from  the  said  defendant,  were  made,  exacted  and 
received  as  aforesaid  from  this  defendant  in  the  State  of  Cali- 
fornia ;  and  by  reason  thereof  the  said  plaintiff  became  liable  to 
pay  said  money  to  this  defendant,  in  said  State  of  California, 
with  the  interest  thereon,  as  expressed  in  said  statute  of  the 
State  of  California,  as  above  set  forth. 

"Wherefore  this  defendant  demands  judgment  against  the 
said  plaintiff;  that  said  complaint  be  dismissed,  and  that  said 
notes  be  delivered  up  to  this  defendant  to  be  canceled,  and 
for  the  sums  of  money  above  set  forth  in  said  counter-claims, 
with  interest  thereon  from  the  time  of  said  payments  as  afore- 
said, at  the  rate  of  ten  per  cent  per  annum,  besides  the  costs 
of  this  action." 

Annexed  were  copies  of  the  contract  and  ordinance  referred 
to  in  the  answer. 

The  plaintiff  demurred,  as  follows  : 

"Horace  W.  Carpentier,  the  plaintiff  in  this  action,  by  his 
attorney  aforesaid,  demurs  to  the  fourth  '  separate  and  dis- 
tinct answer  and  defence '  of  the  defendant  to  the  complaint 
in  this  action,  by  him  pleaded,  and  states  and  shows  to  the 
court  here  the  following  grounds  of  objection  and  demurrer 
to  the  said  fourth  defence,  that  is  to  say  :  That  the  said  fourth 
'  separate  and  distinct  defence,'  and  the  matters  therein  con- 
tained, are  not  sufficient  in  law  to  constitute  either  a  counter- 
claim or  defence  in  this  action. 

"And  the  said  plaintiff  further  says  that  the  said  fourth 
defence  does  not  contain  facts  sufficient  to  constitute  either  a 
defence  to  the  said  complaint,  and  to  the  said  action  of  the 
said  plaintiff,  or  a  counter-claim  thereto,  and  that  it  is  in 
other  respects  uncertain,  informal  and  insufficient.  Where- 
fore the  said  plaintiff  doth  demur  thereto,  and  he  prays  judg- 
ment whether  he  ought  further  to  answer  the  same  or  be 
barred  of  his  said  action. 

"  Second.  Andthe  said  plaintiff  demurs  to  the  fifth  '  separate 


68  CASES  IN  THE  SUPREME  COURT          [1872, 

Carpentier  v.  Minturn. 

and  distinct  defence'  by  the  said  defendant  fifthly  above 
pleaded  as  a  defence,  '  and  as  a  counter-claim  to  the  said  com- 
plaint,' and  says  that  the  same,  and  the  matters  therein  con- 
tained, are  not  sufficient  in  law  to  constitute  a  defence  to  the 
said  complaint  or  to  the  said  action  of  the  said  plaintiff. 

"  And  the  said  plaintiff  states  and  shows  to  the  court  here 
the  following  further  ground  of  objection  and  demurrer  to 
the  said  fifth  defence  and  counter-claim,  that  is  to  say  :  That 
it  does  not  state  facts  sufficient  to  constitute  a  cause  of  action 
in  favor  of  the  said  defendant  against  the  said  plaintiff,  nor 
a  counter-claim  in  favor  of  the  said  defendant  against  the  said 
plaintiff  in  this  action  ;  and  is  in  other  respects  uncertain, 
informal  and  insufficient.  Wherefore  the  said  defendant  doth 
demur  thereto,  and  he  prays  judgment  whether  he  ought 
further  to  answer  the  same  or  reply  thereto. 

"  Third.  And  the  said  plaintiff  demurs  to  the  '  separate  and 
distinct  defence"  of  the  said  defendant,  by  him  sixthly  above 
pleaded  as  a  defence  and  as  a  counter-claim  to  the  said  com- 
plaint of  the  said  plaintiff,  and  says  that  the  same  and  the 
matters  therein  contained  are  not  sufficient  in  law  to  consti- 
tute a  defence  to  the  said  complaint  or  to  the  said  action  of 
the  said  plaintiff. 

"  And  the  said  plaintiff  states  and  shows  to  the  court  here 
the  following  further  grounds  of  objection  and  demurrer  to 
the  said  sixth  defence  and  counter-claim,  that  is  to  say  :  That 
the  said  sixth  supposed  defence  and  counter-claim  does  not 
state  facts  sufficient  to  constitute  a  cause  of  action  in  favor 
of  the  said  defendant  against  the  said  plaintiff,  nor  a  counter- 
claim in  favor  of  the  said  defendant  against  the  said  plaintiff 
in  this  action,  and  that  it  is  in  other  respects  uncertain,  infor- 
mal and  insufficient. 

"  Wherefore,  by  reason  of  the  insufficiency  of  the  said  sixth 
defence  and  counter-claim,  the  said  plaintiff  doth  demur 
thereto,  and  he  prays  judgment  whether  he  ought  further  to 
answer  the  same  or  reply  thereto,  and  he  also  prays  judgment 
as  in  and  by  his  said  complaint  he  has  already  prayed." 


1872.]  OF  THE  STATE  OF  NEW  YORK.  69 

Carpentier  v.  Minturn; 

Charles  N.  Black  and  S.  P.  Nash  for  the  appellant.  The 
act  of  the  State  of  California  did  not  authorize  the  trustees 
of  Oakland  to  make  the  contract  and  ordinance.  {Minturn 
v.  La  Rue,  1  McGill,  370  ;  23  How.,  435.)  They  contended 
substantially  that  the  subject  of  the  alleged  purchase  was 
not  u  matter  of  doubtful  right,  but  had  in  reality  and  fact  no 
existence,  and  hence  could  not  support  a  promise,  citing  Sher- 
man v.  Barnard  (19  Barb.,  291 ;  Gardner  v.  The  Mayor, 
etc.  26  id.,  423).  Also,  that  if  the  money  was  paid  in  mistake 
it  was  one  of  fact  not  of  public  law,  as  the  charter  of  Oakland 
was  but  a  private  act.  (Sharswood's  Black.  Com.,  vol.  1,  p. 
85  and  notes ;  introduc.  §  3 ;  Story  on  Cont.,  §  101.) 

J.  S.,  Carpentier  and  John  K.  Porter ',  for  the  respondent, 
among  other  grounds  for  affirmance,  contended  that  the 
fourth,  fifth  and  sixth  defences  contained  new  matter  not 
constituting  a  counter-claim  and  were  bad  in  substance, 
citing  Code  of  Procedure.  (Merritt  v.  Millard,  5  Bosw.,  645; 
Lawrence  v.  Simmons,  34  Barb.,  355,  358 ;  JV.  jT.  <&  Harlem 
JR.  R.  v.  Marsh,  12  N.  Y.,  308 ;  Fieetwood  v.  City  of  New 
York,  2  Sand.,  475  ;  Louber  v.  Selden,  11  How.  Pr.,  526.) 
That  the  foreign  statute  of  limitation  could  not  be  pleaded. 
(Ruggles  v.  Keeler,  3  John.,  263;  Lincoln  v.  Battelle,  6  Wend., 
475 ;  Christmas  v.  Russell,  5  Wai.,  290,  301 ;  Story's  Oonfl. 
of  L.,  §  577  ;  Toulandon  v.  Lachenmeyer,  6  Abb.  Pr.  [N".  S.], 
215  ;  1  Sweeney,  45  ;  Bulger  v.  Roche,  11  Pick.,  36 ;  Dwight 
v.  Clarice,  7  Mass.,  516  ;  Power  v.  Hathaway,  43  Barb.,  214.) 
That  there  was  a  mistake,  not  of  fact,  but  of  law.  {Curtis 
v.  Brooks,  37  Barb.,  476 ;  Silliman  v.  Wing,  7  Hill,  159 ; 
Supervisors  of  Onondaga  v.  Briggs,  2  Denio,  40 ;  Trigge 
v.  Lavallee,  15  Moore  Pr.  C.  C.,  271 ;  Clarke  v.  Dutcher,  9 
Cow.,  694 ;  Mowatt  v.  Wright,  1  Wend.,  355 ;  Wyman  v. 
Farnsworth,  3  Barb.,  369.)  They  also  cited  Homer  v.  Wood 
(15  Barb.,  371);  Window  v.  Buel  (11  How.  Pr.,  373);  Har- 
mon v.  Bird  (22  Wend.,  112) ;  Whitney  v.  Lewis  (21  id., 
130) ;  Reed  v.  Randall  (29  K  Y.,  358). 


70  CASES  IN  THE  SUPREME  COURT          [1872. 

Carpentier  v.  Minturn. 

l 

Present — BARNAKD,  P.  J.  and  TAPPEN,  J. 

The  judgment   was  affirmed ;  and  the  following  opinion, 
given  by  GILBERT,  J.,  below,  adopted  as  that  of  the  court, 


GILBERT,  J.     I  think  the  demurrer  is  well  taken. 

The  California  statute  of  limitations  is  not  a  bar  here. 
Nor  can  it  have  the  effect  of  varying  the  contract.  That 
was  made,  and  was  to  be  performed  in  California.  The  law 
of  that  State,  therefore,  governs  the  contract.  By  that  law 
the  exorbitant  rate  of  interest  was  lawful,  and  the  plaintiff 
may  enforce  the  contract  in  that  respect  as  well  as  any  other. 

With  respect  to  the  counter-claim,  it  is  alleged  that  there 
was  a  failure  of  the  consideration  of  the  defendant's  obliga- 
tion, for  the  reason  that  the  plaintiff  sold  the  defendant  an 
exclusive  ferry  right,  whereas,  the  right  which  actually  passed 
under  his  grant  was  not  an  exclusive  one.  The  plaintiff 
transferred  precisely  the  right  which  was  granted  to  him  by 
the  town  of  Oakland.  The  defendants  enjoyed  the  subject 
of  the  grant  during  the  time  the  payments  sought  to  be 
recovered  back  were  made.  After  these  payments  were 
made  it  was  judicially  determined  that  by  a  proper  construc- 
tion of  the  act  of  the  legislature  of  California,  by  which  the 
right  to  establish  ferries  was  conferred  upon  the  town  of  Oak- 
land, no  power  to  grant  an  exclusive  right  was  given.  No 
doubt  this  very  much  impaired  the  value  of  the  ferry  right 
which  the  defendants  bought  of  the  plaintiff.  There  is  no 
averment,  however,  of  any  fraud  or  misrepresentation  or 
surprise.  Both  parties,  no  doubt,  supposed  the  grant  made 
by  the  town  of  Oakland  was  that  which  it  in  terms  purported 
to  be,  an  exclusive  one.  The  mistake  arose  from  a  miscon- 
struction of  the  statute  of  California  under  which  the  grant 
was  made.  This  clearly  was  one  of  law,  and  not  only  that, 
but  of  the  general  law  of  the  land.  There  was  no  mistake 
as  to  any  fact  in  the  transaction. 

I  think  it  would  be  unsettling  a  well  established  and  salu- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  71 

Champlin  v.  The  Railway  Passenger  Assurance  Company. 

tary  rule  to  allow  the  defendants  to  take  advantage  of  such  a 
mistake.  The  cases  cited  by  the  counsel  for  the  defendants 
are  not  in  conflict  with  the  rule.  In  all  of  them  there  were 
other  ingredients,  independent  of  the  mere  ignorance  of  law. 
The  mistake  of  law  was  not  per  se  the  foundation  of  relief, 
but  was  only  the  medium  of  proof  by  which  some  other 
ground  of  relief  was  established. 

There  must  be  judgment  for  the  plaintiff  on  the  demurrer, 
•with  costs,  with  leave  to  the  defendants  to  amend  on  payment 
of  costs. 


CHARLES  G.  CHAMPLIN,  Respondent,  v.  THE  RAILWAY  PAS 
SENGER  ASSURANCE  COJIPANY,  Appellant. 

(GENERAL  TERM:,  SECOND  DEPARTMENT,  1872.) 

The  contract  of  insurance  is  an  exception  to  the  rule  which  denies  compen- 
sation for  injuries  of  which  the  party's  own  negligence  or  want  of  due 
care  have  been  the  primary  cause. 

So  held  of  insurance  against  accident 

An  accident  insurance  policy,  covering  risks  while  traveling,  held  to  insure 
against  an  accident  which  occurred  while  the  insured  was  getting  into  a 
public  conveyance  for  passengers,  while  in  motion. 

THIS  was  an  appeal  from  a  judgment  entered  upon  a  deci- 
sion of  tho  court  at  Special  Term. 

The  action  was  upon  an  accident  insurance  policy,  which 
the  plaintiff  had  taken  from  the  defendant  on  the  first  day  of 
July,  1867,  and  which  purported  to  insure  him  against  any 
accident  while  traveling  by  public  or  private  conveyances  for 
transportation  of  passengers  in  the  United  States,  &c.,  causing 
personal  injury,  &c.,  for  one  day. 

It  appeared  that  the  plaintiff,  on  the  same  day,  attempted 
to  jump  on  to  an  omnibus,  a  public  conveyance  used  for  car- 
rying passengers,  while  the  same  was  in  motion  ;  that  he  suc- 
ceeded in  getting  on  to  the  steps,  which  were  at  the  rear  of 
the  omnibus,  but  was  unable,  by  reason  of  the  jar  of  the  vehi- 


72  CASES  IN  THE  SUPREME  COURT  [1872. 

Champlin  v.  The  Railway  Passenger  Assurance  Company. 

cle,  to  maintain  his  footing,  and  received  injuries  of  a  serious 
nature,  from  contact  of  his  knee  with  the  wheel. 

VarricTc  &  Eld/ridge,  for  the  appellant. 
Nelson  &  Baker,  for  the  respondent. 
Present — GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  general  rule  of  law 
undoubtedly  is,  that  a  party  is  not  entitled  to  compensation 
for  an  injury  of  which  his  own  negligence  or  want  of  due 
care  has  been  the  primary  cause.  The  contract  of  insurance, 
however,  forms  an  exception  to  the  rule.  It  has  been 
repeatedly  so  held  in  England  and  in  the  United  States, 
in  relation  to  insurance  against  fire  and  to  marine  insurance. 
(Gates  v.  Madison  Ins.  Co.,  1  Seld.,  478 ;  Mathews  v.  How- 
ard Ins.  Co.,  1  Kern.,  9,  and  authorities  cited;  see,  also, 
Breasted  v.  Farmers'  L.  &  T.  Co.,  4  Seld.,  299.)  The  rea- 
son given  is  that  this  contract  is  one  of  indemnity,  and  that 
one  object  which  the  assured  has  in  view  in  effecting  an  insu- 
rance is  protection  against  casualties  occurring  from  this 
cause.  The  same  reason  applies  with  equal  force  to  the  con- 
tract in  this  case.  We  are,  therefore,  of  opinion  that  the 
proximate  cause  of  the  injury  only  can  be  looked  at,  and  that, 
such  cause  being  an  accident,  it  is  within  the  policy. 

The  only  remaining  question  is,  was  the  plaintiff  traveling 
when  the  accident  happened  ?  He  was  in  the  act  of  getting 
into  a  public  conveyance  for  that  purpose,  and  was  injured 
while  upon  the  outside  step  thereof.  It  would  be  a  very 
strained  construction -of  a  contract  like  this  to  hold  that  he  was 
not  traveling.  If  he  was  not  traveling  it  is  difficult  to  say 
what  he  was  doing.  We  think  that  as  he  was  actually  going 
from  one  place  to  another,  he  was  traveling. 

The  judgment  should  be  affirmed,  with  costs.    • 

Judgment  affirmed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  73 


Jones  v.  Milbank. 


CHABLES  JONES,   Assignee,  &c.,  Respondent,   v.   JEREMIAH 
MILBANK  and  others,  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

An  assignee  in  bankruptcy  may  recover  assets  which  the  bankrupt  has 
fraudulently  concealed  from  his  creditors,  although  the  application  for 
discharge  was  granted  after  opposition  on  the  ground  of  the  same  fraud- 
ulent concealment. 

The  proceedings  on  application  for  the  bankrupt's  discharge  are,  it  seems, 
conclusive  only  in  that  proceeding. 

THIS  was  an  appeal  by  the  defendants  from  an  order  sus- 
taining a  demurrer  to  their  answer  to  the  plaintiff's  com- 
plaint. 

The  plaintiff  set  forth  facts  showing  his  title  to  the  estate 
of  the  defendant  Isaac  L.  Hewitt  as  assignee  in  bankruptcy, 
and  then  averred  that  Hewitt  had  been  doing  business  in 
New  York  as  a  partner  in  several  firms,  one  of  which  still 
existed  and  was  composed  of  the  defendants. 

That  Milbank,  one  of  the  defendants,  was  ostensibly  a 
special  partner  in  such  firm,  but  that  his  ostensible  interest 
was  in  fact  the  property  of  Hewitt,  and  that  Milbank's  name 
was  in  fact  used  to  cover  up  and  conceal  the  interest  of 
Hewitt  in  the  firm.  That  the  interest  of  Hewitt  hf  the  firm 
amounted  to  the  value  of  $35,000,  and  the  complaints  prayed 
judgment  for  the  sum  of  $35,000,  an  account  of  the  profits 
of  the  firm,  and  a  decree  against  them  for  the  profits  belong- 
ing to  Hewitt. 

The  defendants  answered,  setting  up  that  the  action  was 
not  brought  by  the  plaintiff  of  his  own  motion,  but  upon  the 
instigation  of  certain  creditors  of  Hewitt ;  also  the  proceed- 
ings in  bankruptcy  under  which  Hewitt  was  declared  bank- 
rupt. And  they  further  alleged  that  the  creditors  mentioned 
had  filed  proof  of  their  claims,  and  also,  on  behalf  of  them- 
selves and  other  creditors,  objections  to  a  discharge  of  Hewitt, 
which  objections  were  the  same  as  were  set  up  by  the  plain- 
tiff as  a  ground  of  the  relief  asked  in  his  complaint,  and 
LANSING — VOL.  VI.  10 


74  CASES  IN  THE  SUPREME  COURT         [1872. 


Jones  v.  Milbank. 


that  the  issues  thereon  were  duly  tried,  and  the  matters,  in 
respect  thereto,  fully  investigated,  and  all  of  them  decided  in 
favor  of  Hewitt,  and  a  full  discharge  in  bankruptcy  granted 
thereupon.  To  their  answer,  the  plaintiff  demurred,  for  a 
failure  to  state  facts  constituting  a  defence. 

W.  W.  Niles,  for  the  appellant. 

i 
Smith  <&  Cole,  for  the  respondents. 

Present — GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  facts  pleaded  in  the 
answer  are  no  bar.  This  appears  from  the  terms  of  the  bank- 
rupt act  as  well  as  from  the  nature  and  object  of  the  system 
created  by  it. 

The  plaintiff  was  not  and  could  not  be  a  party  to  the 
proceeding  in  the  District  Court,  nor  was  he  in  any  sort  of 
privity  with  the  bankrupt.  But  if  he  could  be  deemed  a 
privy  in  estate,  his  title  accrued  at  the  very  commencement 
of  the  proceedings  in  bankruptcy  (§  14),  which,  of  course, 
was  long  before  the  proceeding  to  oppose  the  discharge  was 
had.  There  would,  therefore,  be  no  estoppel,  for  the  princi- 
ple of  estoppel  has  no  application  except  where  the  convey- 
ance is  made,  after  the  event  out  of  which  the  estoppel  arises. 
(Campbell  v.  Hall,  16  N.  Y.  R.,  575,  and  cases  cited.) 

The  title  to  property  transferred  by  the  bankrupt,  in  fraud 
of  his  creditors,  is,  in  express  terms  (§  14),  at  once  vested  in 
the  assignee  in  virtue  of  the  adjudication  in  bankruptcy  and 
the  appointment  of  his  assignee,  and  the  latter  is  authorized 
to  sue  for  and  recover  the  same ;  and  whether  the  creditors, 
who  oppose  the  bankrupt's  discharge,  succeed  or  fail,  the  pro- 
perty which  may  be  received  or  recovered  by  the  assignee 
remains  vested  in  him,  and  distribution  thereof  is  to  be  made 
among  the  creditors.  (§§  27,  28.) 

The  proceeding  to  oppose  the  discharge  seems  to  be  con- 
clusive only  in  that  proceeding.  If  the  determination  is  in 


1872.]  OF  THE  STATE  OF  NEW  YORK.  75 

Liscoinb  v.  The  New  Jersey  Railroad  and  Transportation  Company. 

favor  of  the  bankrupt,  lie  gets  his  discharge.  But  any  credi- 
tor may  afterward,  and  within  two  years,  apply  to  the  court 
to  annul  it  on  the  same  grounds  on  which  it  had  been  opposed, 
or  others,  and  if  the  fraud  be  established,  the  court  is  required 
to  set  aside  and  annul  the  discharge,  unless  the  creditors  so 
applying  had  knowledge  of  such  fraud  before  the  discharge 
was  granted.  (§  31.)  The  statute  also  provides  (§  29)  that 
the  discharge  itself  shall  not  be  valid  if  the  bankrupt  has 
made  any  fraudulent  disposition  of  his  property,  or  done  any 
of  the  acts  which  the  statute  denounces,  thus  leaving  the 
discharge  open  to  attack  in  any  court  wherever  set  up  as  a  bar. 

It  is  unnecessary  to  pursue  the  subject  further ;  the  judg- 
ment below  was  clearly  right  and  should  be  affirmed,  with 
costs,  with  leave  to  the  defendants  to  amend  on  payment  of 
costs. 

Judgment  affirmed. 


SARAH  M.  LISCOMB,  Respondent,  v.  THE  NEW  JERSEY  RAIL- 
ROAD AND  TRANSPORTATION  COMPANY. 

(GENERAL  TERM,  SECOND  DEPARTJIEXT,  1872.) 

Where  it  appeared  that  the  plaintiff  and  her  husband,  residing  here, 
removed  into  New  Jersey,  where  they  kept  house  for  a  year,  and  then 
were  without  permanent  abode,  visiting  here  and  in  New  Jersey,  until 
after  commencement  of  the  action,  when  they  resumed  housekeeping  in 
this  State,  and  it  did  not  appear  with  what  intention,  as  to  residence, 
they  removed  from  the  State  or  returned  to  it, — Held,  that  the  plaintiff 
was  presumptively  a  resident  of  this  State. 

A  railroad  company  is  guilty  of  gross  negligence  in  leaving  a  hole  in  the 
floor  of  the  depot,  where  its  passengers  are  accustomed  to  alight  from  its 
cars,  thus  rendering  their  landing  unsafe. 

THIS  was  an  appeal,  by  the  defendant,  from  a  judgment  in 
favor  of  the  plaintiff,  upon  the  report  of  a  referee. 

The  plaintiff  sued  in  December,  1870,  to  recover  of  the 
defendant,  a  foreign  corporation,  created  under  the  laws  of 
New  Jersey,  to  recover  damages  alleged  to  have  been  sus- 


76  CASES  IN  THE  SUPREME  COURT          [1872. 

Liscomb  v.  The  New  Jersey  Railroad  and  Transportation  Company. 

tained  in  consequence  of  injuries  occasioned  by  reason  of  the 
defendant's  negligence. 

It  appeared  that  the  plaintiff,  while  descending  from  one 
of  the  defendant's  cars,  upon  which  she  was  a  passenger,  at 
Jersey  City,  at  the  proper  time  and  place,  caught  one  of  her 
feet  in  a  hole  in  the  floor  of  the  depot,  and  sustained  a  per- 
manent injury.  There  was  a  distance  from  the  step  of  the 
car  to  the  floor  of  from  two  feet  seven  inches  to  three  feet. 
The  floor  was  of  plank,  and  directly  beneath  the  place  of  alight- 
ing was  the  hole  from  three  to  six  inches  deep,  and  of  sufficient 
width  and  length  to  admit  of  the  foot  of  an  adult  person 

Other  facts  are  stated  in  the  opinion  of  the  court. 

Charles  F.  Stanford,  for  the  appellant. 

Joshua  M.  Van  Cott,  for  the  respondent 

Present — BARNARD,  P.  J.,  GILBERT  and  TAEPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  subject  of  tl^e  action 
being  transitory  and  personal,  the  rule  of  the  common  law  is, 
that  the  defendants  may  be  sued  wherever  they  can  be  found 
and  served  with  process.  (Story  Confl.  L.,  §  554.)  Personal 
rights  and  obligations,  founded  in  contract  or  growing  out  of 
the  duty  which  one  owes  to  another,  follow  those  who  are 
entitled  to  enforce  them  wherever  they  may  go,  and  may  be 
enforced  by  every  court  which  obtains  jurisdiction  over  '  the 
parties.  (Bennett  v.  Benjamin,  15  Mass.,  355  ;  Smith  v.  Bull, 
17  Wend.,  323 ;  Latourette  v.  Clark,  45  Barb.,  330 ;  Mostyn 
v.  Fabrigas,  1  Smith  Lead.  Ca.,  785-789 ;  Scott  v.  Seymour, 
1  H  &  C.,  210.)  The  complaint  avers  that  the  defendants 
have  an  office  and  place  of  business  in  the  city  of  New  York. 
They  appeared,  and  for  some  time  litigated  the  action  upon 
the  merits,  without  any  contention  respecting  the  jurisdiction 
of  the  court.  We  must  presume  that  they  were  duly  served 
with  the  summons,  conformably  to  the  statute  applicable  to 
such  cases ;  and  section  125  of  the  Code  of  Procedure  in 


1872.]  OF  THE  STATE  OF  NEW  YORK.  77 

Liscomb  v.  The  New  Jersey  Railroad  and  Transportation  Company. 

terms  provides  for  the  trial  of  an  action  where  none  of  the 
parties  reside  within  this  State.  The  defendant's  counsel, 
however,  contends  that  the  evidence  shows  that  the  plaintiff 
was  not,  when  the  action  was  commenced,  a  resident  of  this 
State,  and  that  the  defendant  being  a  corporation,  created  by 
the  laws  of  the  State  of  New  Jersey,  was  not  amenable  to 
the  jurisdiction  of  the  court,  by  force  of  section  427  of  the 
Code  of  Procedure,  although  the  summons  was  served  within 
this  State,  personally,  in  the  manner  provided  by  section  134 
of  said  Code. 

It  is  not  necessary  to  decide  the  precise  question  thus  pre- 
sented, because  the  referee  found  the  fact  to  be  that  the  plain- 
tiff was  a  resident  of  this  State,  and  we  are  of  opinion  that 
the  evidence  was  sufficient  to  sustain  such  finding. 

It  appears  that  the  plaintiff  is  a  married  woman,  and  that 
the  action  was  commenced  in  December,  18TO.  The  plaintiff 
and  her  husband  both  testified  that  their  residence  was  in  the 
city  of  Brooklyn.  It  appears  that,  up  to  the  year  1868,  they 
resided  in  the  city  of  New  York  ;  that  they  then  removed  to 
Rahway.New  Jersey,  where  they  remained  and  kept  house 
for  about  a  year ;  that  they  then  broke  up  housekeeping,  and 
that  they  had  no  permanent  abode  until  May,  1871,  when  they 
resumed  housekeeping  in  Brooklyn.  During  the  interval 
between  November,  1870,  and  May,  1871,  the  plaintiff'  a^d 
her  husband  boarded  a  part  of  the  time  in  Brooklyn,  making 
frequent  visits  to  their  relatives,  who  resided  in  New  Jersey 
and  in  New  York.  The  evidence,  however,  irrespective  of 
the  direct  declarations  of  the  plaintiff  and  her  husband,  was 
not  conclusive  upon  the  subject  of  their  residence  or  domicile 
during  that  period.  The  plaintiff's  residence,  in  contempla- 
tion of  law,  was  that  of  her  husband.  The  husband  was  not 
questioned,  as  to  his  intentions,  when  he  left  New  York  and 
went  to  New  Jersey.  He  may  have  been  domiciled  in  New 
York,  and  have  taken  up  his  residence  in  New  Jersey,  for  a 
temporary  purpose,  without  changing  his  domicile.  In  such  a 
case,  by  abandoning  his  temporary  residence  with  the  inten- 
tion of  returning  to  his  place  of  domicile,  the  latter,  in  the 


78  CASES  IN  THE  SUPREME  COURT          [1872, 

Liscomb  v.  The  New  Jersey  Railroad  and  Transportation  Company. 

. i , . . 

absence  of  evidence  that  before  his  actual  return  to  his  domicile 
he  had  acquired  another  residence  elsewhere,  would  be  deemed 
his  residence.  Nor  was  he  questioned  respecting  his  intentions 
as  to  his  future  place  of  residence,  when  he  quitted  Rah  way. 
The  evidence  is  certainly  insufficient  to  show  that  he  actually 
acquired  another  residence  in  New  Jersey.  Leaving  out  of 
view  the  positive  statements  of  the  plaintiff  and  her  husband, 
that  they  resided  in  Brooklyn,  however,  and  conceding  that 
the  rest  of  their  evidence  may  be  regarded  as  sufficient  to 
show  that  their  actual  residence  was  in  New  Jersey,  still  it 
was  competent  for  the  referee  to  take  those  statements  into 
consideration,  and  to  decide  upon  the  effect  of  all  the  evidence 
on  this  subject,  and  we  ought  not  to  reverse  his  finding, 
especially  as  the  point  does  not  go  to  the  merits  of  the  case. 

We  are  clearly  of  opinion  that  the  facts  entitled  the  plain- 
tiff to  recover.  The  defendants  were  guilty  of  gross  negli- 
gence in  leaving  a  hole  in  the  floor  where  passengers  were 
accustomed  to  alight  from  their  cars.  They  were  not  bound 
to  afford  a  platform  higher  than  the  floor,  for  the  purpose  of 
a  landing,  but  they  were  bound  to  see  that  the  place  which 
they  did  provide  for  the  landing  of  passengers,  whether  a 
platform  or  a  floor,  was  a  safe  one. 

It  does  not  appear  that  the  plaintiff  saw  the  hole  in  the 
floor,  in  question,  or  that  she  omitted  the  use  of  any  reason- 
able precaution  to  prevent  the  accident.  She  had  a  right  to 
rely  upon  the  floor  being  free  from  holes,  without  taking 
special  pains  to  ascertain  whether  it  was  or  not  before  she 
stepped  upon  it.  (Ferris  v.  Union  Ferry  Co.,  36  N.  Y.,  312 ; 
Davenport  v.  Jtucfanan,  37  id.,  568,  573.) 

The  case  presents  no  ground  for  setting  aside  the  verdict 
because  the  damages  were  excessive. 

The  judgment  should  be  affirmed  with  costs. 

Judgment  affirmed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  79 

Rycisman  t>.  Gillis. 


KATE  T.  RYCKMAN  Respondent,  v.  STEPHEN  0.  GILLIS, 
Appellant. 

(GENERAL  TEEM,  SECOND  DEPARTMENT,  1872.) 

Under  a  conveyance  of  land,  with  covenant  for  quiet  enjoyment,  reserv- 
ing the  right  to  enter  on  a  certain  part  thereof  and  dig  and  take  the 
clay  and  sand  fit  for  brick  making, — Held,  that  the  grantor  was  not 
at  liberty  to  remove  the  lateral  support  of  the  land  granted,  in  the  exer- 
1  else  of  his  right  to  take  the  clay  and  sand  from  the  part  specified. 

Also,  that  the  property  in  the  clay  and  sand  was  excepted  from  the  con- 
veyance, and  the  provision  in  respect  to  entry  for  their  removal  did  not 
change  the  nature  of  the  grantor's  title  to  them. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment  for 
the  plaintiff,  on  the  decision  of  the  court,  for  damages,  and 
perpetually  restraining  the  defendant  from  so  digging  and 
removing  clay  or  sand  from  certain  premises  as  to  destroy  or 
impair  the  lateral  support  which  the  soil  of  such  premises 
afforded  to  the  plaintiff's  adjacent  premises,  or  to  increase  the 
tendency  of  such  adjacent  lands  to  crack,  subside  or  fall  away. 

The  questions  in  controversy  turned  upon  the  construction 
of  a  deed  from  the  plaintiff  to  one  Sarah  B.  Shutes,  who  had 
conveyed  to  the  plaintiff,  subject  to  the  defendant's  rights 
under  his  deed  to  her.  The  defendant  claimed  a  right  to 
remove  clay  and  sand  from  a  portion  of  the  premises  granted 
by  him  to  Shutes,  without  regard  to  a  disturbance  of  the  con- 
dition of  the  remaining  land  by  removal  of  the  lateral  sup- 
port thereof;  and  the  action  was  to  recover  damages  for  inju- 
ries already  done  in  that  particular,  and  for  an  injunction 
restraining  the  defendant  from  acts  causing  similar  injuries. 
The  provisions  of  the  deed  from  the  defendant,-  so  far  as 
material,  are  stated  in  the  opinion. 

It  appeared  that,  at  the"  time  of  defendant's  conveyance, 
there  were,  and  so  remained  at  the  time  of  sale,  buildings 
upon  the  premises  granted,  and  that,  after  receiving  his  title, 
the  plaintiff  had  enlarged  and  improved  them,  but  that  these 
buildings  neither  disturbed  the  natural  coherency  of  the  soil, 


V 

80  CASES  IN  THE  SUPREME  COURT          [1872. 

Ryckman  v.  Gillis. 

or  by  their  weight  increased  the  tendency  of  the  plaintiff's 
lands  to  fall  away  into  the  excavations  made  by  the  defendant. 

E.  A.  Brewster  and  E.  L.  FancJier,  for  the  appellant. 
S.  W.  Fullerton,  for  the  respondent. 
Present — GILBERT  and  TAPPEN,  JJ. 

By  the  Court — GILBERT,  J.  The  determination  of  this 
case  turns  on  the  construction  of  the  deed  from  the  defend- 
ant to  the  plaintiff's  grantor.  The  cardinal  rule  in  the  con- 
struction of  deeds  is  to  give  effect  to  the  intention  of  the 
parties  to  it ;  and  this  is  now  made  obligatory  by  statute.  (1 
R.  S.,  748,  §  2.) 

This  deed  conveys  twelve  acres  of  land  in  fee,  with  a  clause 
in  it  "  reserving  to  the  said  Stephen  C.  Gillis,  his  heirs  and 
assigns,  the  right  at  all  times  hereafter,  so  long  as  the  clay  or 
sand  may  last  or  be  used  for  brick-making  purposes,  to  enter 
upon  that  part  of  the  aforesaid  premises  bounded  and 
described  as  follows  (here  follows  description),  containing  one 
acre  and  seventy-five  hundredths  of  an  acre  of  land  ;  and  to 
dig  and  take  therefrom  the  clay  and  sand  that  may  be  found 
thereon  fit  for  brick  making.  Such  clay  and  sand  is  to  be 
taken  for  no  other  purpose  than  brick  making,  and  the  right 
to  enter  upon  the  aforesaid  part  of  said  premises  is  to  be  only 
for  the  purpose  of  digging  and  removing  such  clay  and  sand." 
It  also  contains  a  covenant  on  the  part  of  the  defendant  that 
"the  said  party  of  the  second  part  (plaintiff's  grantor),  her 
heirs  and  assigns,  shall  and  may,  at  all  times  hereafter,  peace- 
ably and  quietly  have,  hold,  use,  occupy,  possess  and  enjoy 
the  above-granted  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  without  any  let,  suit,  trouble,  molesta- 
tion, eviction  or  disturbance  of  the-  said  parties  of  the  first 
part,  their  heirs  or  assigns,  or  of  any  other  person  or  per- 
sons lawfully  claiming  or  to  claim  the  same." 

It  is  not  disputed  that  the  plaintiff  is  entitled  to  subjacent 


L872.]  OF  THE  STATE  OF  NEW  YORK.  81 

Ryckman  v.  Gillis. 

and  adjacent  support  to  her  land,  unless  the  right  to  take 
away  such  support  has  been  expressly  granted  to  the  defend- 
ant. It  is  contended  by  the  defendant  that  the  legal  effect  of 
the  reservation  in  his  deed  is  the  same  as  that  of  an  express 
grant  to  him  of  the  right  reserved.  No  doubt  this  is  true. 
But  he  further  contends  that  the  right  is  to  remove  the  lateral 
and  vertical  support  of  the  plaintiff's  land,  without  regard  to 
the  consequences  to  the  plaintiff.  "We  are  of  opinion  that 
the  deed  does  not  allow  of  such  a  construction.  The  right 
contended  for  is  not  given  in  terms,  and  it  would  be  unrea- 
sonable to  suppose  that  the  parties  contemplated  any  such 
consequence.  Upon  such  a  construction  the  covenant  for 
quiet  enjoyment  would  have  little  effect.  Taking  the  whole 
deed  and  giving  effect  to  every  part  of  it,  we  think  the  inten- 
tion of  the  parties  was  to  except  from  the  premises  granted 
the  clay  and  sand,  and  to  give  the  defendant  the  right  to 
remove  them,  provided  he  would  do  so  without  disturbing 
the  plaintiff 's  grantor  in  the  enjoyment  of  that  part  of  the 
property  not  excepted.  Indeed,  we  are  of  opinion  that  such 
is  the  legal  effect  of  the  instrument  upon  the  language 
employed.  The  use  of  the  word  "reserving1'  in  the  clause 
relating  to  the  clay  and  sand,  does  not  make  that  clause  a 
technical  "  reservation."  Lord  COKE  says :  "  The  word 

t/ 

1  reserve '  sometimes  hath  the  force  of  saving  and  excepting. 
Sometimes  it  serveth  to  reserve  a  new  thing,  viz.,  a  rent,  and 
sometimes  to  except  a  part  of  the  thing  in  use  that  is  granted." 
(Co.  Litt.,  47  a,  143  a.)  A  reservation  is  never  of  any  part 
of  the  estate  granted,  but  must  be  of  some  new  thing  issuing 
out  of  it,  as  rent  and  the  like,  while  an  exception  can  only  be 
of  a  part  of  the  premises  described  as  granted.  (Shep.  Touch., 
77,  78  ;  Craig  v.  Wells,  1  Kern.,  315.) 

Applying  these  rules,  it  is  evident  that  the  clay  and  sand 
were  not  conveyed  by  the  defendant,  but  the  property  in  them 
remained  in  him  after  the  deed  as  before.  The  grant  of  the 
right  to  enter  for  the  purpose  of  removing  them  worked  no 
change  in  the  nature  of  the  defendant's  property  in  the  mate- 
rials, for  he  had  precisely  the  same  right,  and  no  other  or 

LANSING — VOL.  VI.  11 


82  CASES  IN  THE  SUPREME  COURT          [1872. 


Terrett  v.  Crombie. 


different,  before  the  grant  was  made.  As  to  the  clay  and 
sand,  therefore,  the  defendant  occupied  the  position  of  an 
adjoining  proprietor  to  the  plaintiff,  and  was  subject  to  the 
rule  of  the  common  law  that  every  person  must  so  use  his 
own  property  as  not  to  do  any  damage  to  the  property  of 
another.  The  plaintiff's  right  of  subjacent  and  adjacent  sup- 
port to  his  land  is  an  easement  which  exists  as  a  natural 
accessory  of  the  soil.  It  is  founded  in  justice,  and  is  now- 
well  sustained  by  authority.  (Wiles  v.  Winsterly,  2  Roll 
Ab.,  564 ;  Farrand  v.  Marshall,  21  Barb.,  410,  and  cases 
cited;  Harris  v.  Ryding,  5  M.  &  W.,  60;  N.  S.  Bail.  Co. 
v.  Crosland,  32  Law  Jour.,  chap.  358 ;  Caled.  R.  Co.  v. 
Sprot,  2  McQueen,  452 ;  Harris  v.  Roberts,  7  S.  &  B.,  625.) 

The  judgment  must  be  affirmed,  with  costs. 

Judgment  affirmed. 


CHARLES  "W.  TEKRETT,  Respondent,  v.  JAMES  CROMBIE  and 
MARY  CROMBIE,  Appellants. 

(GENERAL  TEEM,  SECOND  DEPARTMENT,  1872.) 

The  defendant  took  a  deed  of  building  lots,  which  were  under  contract  of 
sale,  and  agreed  with  his  grantor  to  make  advances  for  building  pur- 
poses to  the  purchaser,  and  in  due  time  convey  to  him  and  receive  back 
mortgages,  and,  after  deducting  his  advances  and  certain  other  sums  and 
claims  from  the  price  under  the  contract,  pay  the  surplus  to  the  grantors 
by  the  second  mortgages  of  the  purchaser.  Held,  that  he  was  a  trustee 
stibmodo  for  the  grantor,  and  was  bound  to  convey  the  subject  of  the 
trust  to  her  on  payment  of  the  amount  due  him,  with  expenses  of  man- 
agement and  interest;  and,  until  discharged  from  the  trust,  to  hold, 
manage  and  preserve  the  property  for  the  grantor. 

Held,  also,  that  he  could  not  divest  himself  of  the  character  of  trustee  by 
becoming  the  purchaser  of  the  property  upon  foreclosure  sales  in  actions 
brought  by  himself  upon  the  second  mortgages,  no  settlement  having 
been  made  with  the  grantor,  and  she  not  having  been  party  to  the  action. 
And  that  this  was  so,  notwithstanding  the  legitimate  claims  of  the 
defendant  under  the  agreement  exceeded  the  amount  secured  by  the 
mortgages,  and  the  remaining  payments  and  securities  had  been  exhausted 
by  his  payments  in  accordance  with  the  agreement. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 


Tcrrett  t.  Crombie. 


And  quere  whether  the  fact  would  have  been  otherwise  if  the  grantor  had 
been  party  to  the  foreclosure  actions. 

Nor  was  the  defendant  discharged  from  the  trust  by  the  grantor's  refusal, 
upon  request,  to  retake  the  property  and  pay  him  his  advances  and 
claims. 

Nor  by  his  paying  to  the  grantor  a  greater  amount  than  that  of  the  mort- 
gages. 

Held,  further,  that  the  wife  of  the  defendant  had  no  claim  to  dower  in  the 
property,  superior  to  the  grantor's  right  to  redeem,  on  payment  of  the 
advances,  &c. 

THIS  was  an  appeal  by  the  plaintiff  from  a  judgment  in  the 
plaintiff 's  favor,  entered  on  the  report  of  a  referee. 

The  action  was  brought  to  redeem  certain  property  in 
Brooklyn,  to  which  James  Crombie,  the  defendant,  claimed 
title  as  purchaser  at  foreclosure  sales,  in  actions  brought  by 
him  as  the  mortgagee  in  second  mortgages  thereon. 

The  facts  as  they  appeared  and  were  found  by  the  referee 
were  substantially  these,  viz.: 

One  Eleanor  Terrett,  the  plaintiff's  assignor,  held  the  title 
to  two  tiers  of  five  lots  Bach,  situate  respectively  on  the  north- 
easterly and  north-westerly  corners  of  Franklin  and  Madison 
streets,  Brooklyn.  These  she  had  contracted  to  sell  to  one 
Jane  Hudson  at  the  price  of  $900  per  lot,  and  at  the  same 
time  had  agreed  to  advance  $6,600  to  her  for  the  erection  of 
buildings  upon  the  lots,  and  for  conveyance  upon  completion 
of  the  buildings.  Afterward,  upon  the  failure  of  Jane  Hud- 
son to  fulfill  her  part  of  the  contract,  the  plaintiff  conveyed 
the  lots  to  the  defendant,  James  Crombie,  and  assigned  to 
him  the  contract  of  sale.  Crombie  executed  back  to  the  plain- 
tiff an  agreement  in  the  nature  of  a  defeasance,  setting  forth 
the  object  of  the  conveyances  and  the  nature  and  extent  of 
their  respective  interests  in  the  property.  The  contracts 
with  Jane  Hudson  were  canceled,  and  new  contracts,  of  like 
nature  with  the  first  contracts  of  sale,  were  given  by  Crombie 
to  other  parties,  with  the  plaintiff's  consent. 

The  ultimate  agreement  made  between  the  plaintiff  and 
Crombie  contemplated  that  Crombie  should  make  advances 
iii  aid  of  the  erection  and  completion  of  houses  on  the  lots 


84  CASES  IN  THE  SUPREME  COURT          [1872, 


Terrett  v.  Crombie. 


and  in  due  time  convey  them  and  receive  first  and  second 
mortgages  thereon,  which  he  should  use  as  follows,  viz. :  The 
first  mortgages  in  raising  money  to  be  applied  toward  the 
expenses  of  the  improvements  and  toward  reimbursing  him- 
self for  advances.  Upon  satisfaction  of  his  claims  out  of  the 
proceeds  of  first  mortgages,  or  of  the  sales  of  the  houses  and 
lots,  and  by  retaining  to  himself  second  mortgages  for  the 
balance,  Eleanor  Terrett  was  to  have  all  the  residue  of  the 
second  mortgages  or  moneys ;  but  the  second  mortgages  were 
not  to  be  assigned  until  the  houses  should  be  completed.  If 
there  should  be  a  failure  of  the  party  contracting  to  purchase 
and  build  upon  the  lots,  and  they  should  be  sold  to  others, 
Crombie  was  to  pay  over  to  Eleanor  Terrett  all  he  should 
receive  on  sale  of  the  houses  and  lots,  after  retaining  to  him- 
self all  sums  and  payments  provided  for  in  the  contract. 

In  pursuance  of  the  arrangement  so  made,  Crombie  con- 
veyed the  houses  and  lots  to  one  Atkins,  and  received  of 
him  a  first  and  second  mortgage  on  each  of  the  houses  and 
lots.  Of  these  first  mortgages  Crombie  negotiated  nine, 
retaining  the  other  to  himself,  and  he  applied  the  moneys  he 
received  on  the  mortgages  and  used  one  of  the  second  mort- 
gages in  procuring  supplies  for  the  buildings,  and  he  ceased 
to  have  any  interest  in  the  house  and  lot  covered  by  the  last- 
mentioned  second  mortgage. 

Before  the  completion  of  the  houses,  and  on  the  failure  of 
Atkins  to  pay  the  interest  due  on  the  nine  second  mortgages, 
Crombie  obtained  judgment  of  foreclosure  upon  the  second 
mortgages,  and  for  sale  of  the  lots  covered  thereby,  in  an 
action  in  which  he  was  plaintiff,  as  mortgagee.  On  the 
sale  of  the  houses  and  lots  in  pursuance  of  the  judgment,  he, 
Crombie,  became  the  purchaser,  and  took  conveyances  to  him- 
self. Eleanor  Terrett  was  not  party  to  the  action. 

After  the  foreclosure  sale,  Crombie  sold  and  conveyed  three 
of  the  houses,  and  held  the  remaining  six  at  commencement 
of  the  action. 

At  the  time  of  the  conveyance  to  Atkins  the  houses  were 
unfinished,  he,  Atkins,  having  failed  to  fullfil  a  contract  made 


1872.]  OF  THE  STATE  OF  NEW  YORK.  85 


Terrett  t>.  Crombie. 


with  his  assignee  for  the  purchase  of  the  property  and  comple 
tion  of  the  buildings,  and  the  houses  and  lots  were  not  then  sale 
able  for  a  sufficient  amount  to  pay  Crombie  for  his  advances, 
and  the  sums  specified  in  his  agreement  with  the  plaintiff  as 
payable  to  him  out  of  the  proceeds  of  the  sale  and  mortgages 
of  the  property,  which  sums  included  advances  for  the  build- 
ing, for  taxes,  accounts  due  to  him  from  the  plaintiff,  and  for 
services  in  care  and  attention  and  labor  in  respect  to  the  pro- 
perty, and  also  attorney's  and  counsel  fees  earned  by  him  as 
an  attorney,  etc.,  in  respect  to  the  same  matters.  At  that 
time  Crombie  requested  the  plaintiff's  assignor,  Eleanor  Ter- 
rett, to  take  the  second  mortgages,  and  pay  him  the  amount 
due  under  the  agreement,  but  she  declared  her  inability  to 
comply  with  this  request. 

At  the  foreclosure  sale  of  the  second  mortgages,  the  agent 
of  Eleanor  Terrett  attended  and  bid  upon  the  lots,  but  there 
were  no  bids  for  a  sufficient  amount  to  cover  Crombie's 
claim  under  the  contract  upon  the  property,  which  in  the 
aggregate  amounted  to  some  $15,000. 

Other  facts  are  stated  in  the  opinion  of  the  court. 

James  Crmribie  and  Henry  Woodruff,  for  the  appellants. 

«/.  M.  Van  Cott,  for  the  respondent. 

Present — BARNARD,  P.  J.,  GILBERT  and  TAPPEN,  JJ". 

By  the  Court  —  GILBERT,  J.  The  agreements  between  Mrs. 
Terrett  and  Mr.  Crombie  are  plain  and  unambiguous.  They 
show  that  all  the  transactions  of  Mr.  Crombie  in  respect  to 
the  real  estate  in  controversy  were  entered  into  and  conducted 
by  him  for  her  benefit ;  that  he  held  successively  the  title  to 
such  real  estate  and  the  mortgage  thereon  as  security  merely 
for  her  indebtedness  to  him,  which  each  agreement  specifies, 
and  that  he  was  bound  to  transfer  to  her  such  real  estate  or 
the  proceeds  thereof,  upon  being  paid  such  indebtedness.  He 
was,  therefore,  as  to  the  subjects  of  the  agreement,  a  trustee 


8G  CASES-  IN"  THE  SUPREME  COURT          [I872L 


Terrett  v.  Crombie. 


sub  modo  for  Mrs.  Terrett ;  that  is  to  say,  he  was  bound  to- 
con  vey  the  subject  of  the  trust  to  her  upon  being  paid  the 
amount  due  him,  with  the  expenses  of  management  and  inte- 
rest, and  in  the  meantime,  or  until  duly  discharged  from  the- 
trust,  to  hold,  manage  and  preserve  the  property  for  her. 

"When  Crombie  conveyed  to  Atkins  and  took  back  the 
mortgages,  this  character  of  a  security  was  at  once  impressed 
on  them,  and  he  held  them,  upon  the  same  trust  upon  which 
he  had  before  held  the  real  estate.  No  rule  in  equity  is  bet- 
ter settled  than  that  a  person  so  situated  is  incapacitated  from 
acquiring  by  purchase  on  his  own  account  the  property  affected 
by  the  trust  without  the  consent  of  the  cestui  que  trust.  The 
only  effect  of  the  foreclosure  of  the  mortgages  was  to  bar  the 
equity  of  redemption  of  the  mortgagor  and  those  claiming 
under  him  in  the  land. 

When  Mr.  Crombie  as  purchaser  at  the  sale  acquired  the 
property,  the  same  trust  attached  to  it  as  had  before  attached 
to  the  mortgages*.  The  decrees  in  the  foreclosure  suits  did 
not  affect  Mrs.  Terrett's  equitable  right  to  redeem  the  mort- 
gages, for  she  was  not  a  party  to  those  suits ;  and  it  is  at  least 
doubtful  whether  it  would  have  made  any  difference  if  she 
had  been  a  party.  Having  a  right  to  redeem  the  mortgages,, 
she  has,  upon  the  principle  before  stated,  the  same  right  to- 
redeem  the  land  acquired  by  Mr.  Crombie  by  the  foreclosure 
thereof.  The  cases  of  Hoyt  v.  Martinse  (16  K  Y.,  231)  and 
Case  v.  Carroll  (35  id.,  385)  are  decisive  upon  this  point. 

Has  anything  occurred  to  relieve  or  discharge  Mr.  Crombie 
from  this  trust  ?  Nothing  is  shown  except  a  request  by  Mr. 
Crombie,  made  to  Mrs.  Terrett  in  September,  1860,  that  she 
should  take  the  property  and  pay  him  the  amount  due  him,  to 
which  she  replied  that  she  was  unable  to  do  so.  It  is  very  clear 
that  this  transaction  had  no  legal  effect  whatever  upon  the 
equitable  rights  of  the  parties.  There  was  no  relinquishment 
by  Mr.  Crombie  of  Mrs.  Terrett's  indebtedness  to  him,  and,  so 
long  as  this  continued,  her  right  to  redeem  and  the  trust  to 
preserve  that  right  continued  also.  A  trustee  cannot  denude 
himself  of  the  character  of  trustee  by  his  own  act,  or  bj 


1872.]  OF  THE  STATE  OF  NEW  YORK.  87 


Terrett  v.  Crombie. 


abandoning  or  relinquishing  the  trust.  He  can  be  discharged 
only  by  a  complete  execution  of  the  trust,  by  a  decree  of  the 
court,  by  the  agreement  of  the  cestui  que  trust,  or  by  virtue 
of  a  power  in  the  instrument  creating  the  trust.  (Lewin  on 
Trusts,  565.) 

It  appears  that  in  July,  1860,  Mr.  Crombie  advanced  or 
paid  to  Mrs.  Terrett  a  sum  of  $1,245,  and  another  sum  of 
forty-nine  dollars,  for  which  she  gave  written  receipts,  stating 
that  they  had  been  received  on  account  of  the  last  of  the 
agreements  aforesaid,  dated  February  25th,  1860,  in  lieu  of 
mortgages.  It  is  now  claimed  on  behalf  of  Mr.  Crombie 
that  these  sums,  together  with  the  sums  previously  advanced 
by  him,  and  the  indebtedness  of  Mrs.  Terrett  to  him,  men- 
tioned in  said  agreement,  exceeded  the  nominal  amount  of 
the  mortgages  in  his  hands,  and  that  therefore  the  title  to 
said  mortgages  became  absolute  in  him,  and  the  case  of  Chal- 
•mer  v.  Bradley  (1  J.  &  W.,  64)  is  cited  as  an  authority  for 
this  position.  But  the  dictum  referred  to  merely  shows  that 
where  a  debtor  places  personal  property  in  the  hands  of 
another  for  the  purpose  of  raising  a  fund  to  pay  the  debts 
of  the  former,  due  to  third  persons,  if  the  trustee  advances  to 
the  creditors  out  of  his  own  pocket  more  than  the  value  of 
the  property,  he  would  acquire  an  absolute  right  to  it  by 
operation  of  law.  No  doubt  there  may  be  cases  in  which 
that  principle  would  be  correct.  But  it  is  never  applicable 
where  the  trustee  holds  the  property  as  security  for  his  own 
debt.  In  such  a  case,  the  qualified  title  of  the  trustee  cannot 
be  converted  into  an  absolute  one,  except  by  a  sale  authorized 
by  law,  or  by  consent  of  the  cestui  que  trust.  (Story  Eq. 
Jur.,  §  1008.) 

It  is  true,  Mr.  Crombie  would  have  been  bound  to  receive 
the  amount  of  the  mortgages  in  cash,  if  that  amount  had 
been  tendered  by  the  mortgagor  or  any  one  in  privity  with 
him,  and  in  such  case  Mrs.  Terrett  would  have  been  entitled 
to  a  credit  only  for  the  amount  so  received.  But  she 
is  equally  entitled  to  any  incidental  advantages  arising 
from  any  other  disposition  of  the  mortgages,  for  the  rule  is 


88  CASES  IN  THE  SUPREME  COURT          [1872. 


Terrett  v.  Crombie. 


that  a  trustee  shall  not  be  permitted  to  speculate  out  of  the 
subject  of  the  trust.  It  is  a  salutary  rule  of  public  policy, 
and  ought  to  be  steadily  upheld,  in  spite  of  the  apparent  hard- 
ship of  particular  cases. 

Tt  is  also  said  that  Mr.  Crombie  was  entitled,  by  virtue  of 
the  agreement  of  July  25, 1860,  to  appropriate  the  mortgages 
iti  payment  of  the  amount  due  him.  We  think  that  is  not  the 
fair  import  of  the  agreement ;  but,  assuming  that  it  is,  he  did 
not  in  fact  so  appropriate  the  mortgages.  No  accounting  was 
had,  the  amount  due  from  Mrs.  Terrett  was  not  ascertained, 
nor  was  she  credited  with  any  more  on  account  of  the  mort- 
gages. For  aught  that  appears,  Mr.  Crombie  retained  the 
same  hold  upon  Mrs.  Terrett  after  the  sales  as  before,  and  had 
done  no  act  to  bind  him,  in  case  the  property  depreciated,  to 
apply  any  particular  sum  on  account  of  her  indebtedness.  At 
all  events,  such  indebtedness  remained  open  and  unliquidated, 
and  therefore  whatever  he  held  as  security,  whether  it  was  in 
the  original  or  a  substituted  form,  continued  to  be  held  merely 
as  security,  and  he  remained  under  all  the  obligations  in  respect 
to  it  which  he  originally  assumed. 

It  is  claimed  on  behalf  of  Mrs.  Crombie  that  she  has  a  right 
of  dower  in  the  premises  sought  to  be  redeemed.  At  common 
law  the  legal  estate  of  a  trustee  was  subject  to  dower ;  but,  as 
a  dowress  takes  by  operation  of  law,  if  she  should  take  dower 
in  a  trust  estate  she  would  only  take  it  subject  to  the  same 
equities  as  affected  the  trustee.  Consequently  it  is  now  the 
rule  that  a  widow  has  no  dower  in  the  lands  held  by  her  hus- 
band as  trustee.  If  the  trustee  has  a  beneficial  interest  in  the 
land,  dower  will  attach  to  such  interest ;  but  not  to  the  inte- 
rest of  a  mortgagee,  or  to  any  interest  which  is  subject  to  the 
right  of  redemption  of  the  cestui  que  trust.  "Whatever  right 
Mrs.  Crombie  has  to  the  land  in  question  is  subject  to  the 
right  of  redemption  of  Mrs.  Terrett,  and  will  be  effectually 
barred  by  a  redemption  by  virtue  of  the  decree  in  this  case,  or 
by  a  conveyance  by  her  husband  in  execution  of  the  trust 
thereby  established.  (Lewin  on  Trusts,  279  ;  Kent  Com.,  43  ; 
Cooper  v.  Whitney,  3  Hill,  97;  1  R.  S.,  741,  §§  5,  6,  7.) 


1872.]  OF  THE  STATE  OF  NEW  YORK.  89 

Gove  v.  Lawrence. 

The  conclusions  of  the  referee  appear  to  be  in  accordance 
with  the  principles  expressed,  and  we  have  been  unable  to  dis- 
cover any  errors  in  the  account  stated  by  him. 

The  decree,  therefore,  is  affirmed  without  costs  to  the  plain- 
tiff ;  but  a  clause  must  be  inserted  in  the  judgment  of  affirmance, 
that  if  the  plaintiff  avails  himself  of  the  right  to  redeem, 
he  must  do  it  within  thirty  days  after  service  of  a  copy  of  the 
judgment  entered  hereon  upon  his  attorney,  and  that  in 
default  of  such  redemption  he  arid  all  claiming  under  him  be 
barred,  &c.,  and  that  Mr.  Crombie  recover  his  costs  upon  this 
appeal. 

The  order  upon  the  motion  to  send  back  the  referee's  report 
is  affirmed,  with  ten  dollars  costs. 


WALTER  S.  GOVE,  Respondent,  v.  ALEXANDER  M.  LAWRENCE 
and  another.  Appellants. 

(GENERAL  TERM,  SECOND  DEPARTMENT,  1872.) 

The  satisfaction  of  a  judgment  affirmed  in  the  Court  of  Appeals  discharges 
the  sureties  upon  the  appeal  bond,  and  entitles  the  appellant  to  a  return 
of  securities  delivered  as  security  against  liability  on  the  bond. 

Proof  of  fraud,  or  mistake  to  which  the  surety  was  privy,  hi  procuring  the 
satisfaction,  might  enable  him  to  retain  the  securities. 

An  agreement  by  one  member  of  a  copartnership  with  a  trustee  of  the  firm 
to  divert  securities  belonging  to  the  firm,  in  the  hands  of  the  latter,  to  the 
individual  use  of  the  former  is  not  valid. 

THIS  was  an  appeal  taken  by  the  defendant  from  a  judg- 
ment for  the  plaintiff  entered  on  the  report  of  a  referee. 

The  action  was  brought  to  recover  a  share  (one-half)  of  the 
proceeds  of  certain  bonds  left  in  the  hands  of  the  defendant, 
Lawrence,  by  the  firm  of  Gove  &  Ward,  composed  of  the 
plaintiff  and  defendant  Ward,  who  was  made  a  defendant  on 
refusal  to  join  as  plaintiff. 

It  appeared  that  the  plaintiff  and  Ward  were  partners  in 
business,  and  entitled  each  to  one-half  of  the  property  and  assets 
of  the  partnership.  That  during  the  continuance  of  the  part 

LAXSIXG  — VOL.  VL         12 


90  CASES  IN  THE  SUPREME  COURT          [1872. 


Gove  «.  Lawrence. 


nership  the  firm  deposited  with  the  defendant,  Lawrence, 
five  bonds  of  the  United  States,  with  coupons  attached,  which 
were  firm  property,  taking  a  receipt  therefor  as  follows,  viz.  : 


YORK,  September  15,  1863. 

"  Received  from  Messrs.  Ward  &  Gove  five  bonds,  of  one 
thousand  dollars  each,  of  the  United  States,  and  known  as 
five-twenties,  Nos.  37,857,  37,858,  37,859,  37,860  and  37,861, 
the  same  being  deposited  with  me  as  security  for  bonds  given 
by  John  S.  Lawrence,  John  C.  Giles,  and  myself,  as  security 
for  an  appeal  of  a  suit  of  Messrs  Ward  &  Gove  to  Court  of 
Appeals  ;  and  upon  the  final  decision  and  settlement  of  same, 
said  bonds  are  to  be  returned  to  Messrs.  Ward  &  Gove. 

"  ALEXANDER  M.  LAWRENCE. 

"  The  coupons,  when  due,  are  to  be  handed  to  Messrs.  Ward 

&  Gove. 

"A.M.LAWRENCE." 

It  also  appeared  that  the  defendant,  Lawrence,  procured 
undertakings  to  be  given  with  him  by  John  C.  Lawrence  and 
John  C.  Giles,  mentioned  in  the  receipt,  in  actions,  in  which 
one  Kelsey  as  plaintiff  had  recovered  judgment  against  the 
firm  of  Ward  &  Gove  as  defendants,  on  appeal  therein  to  the 
Court  of  Appeals.  The  referee  found,  as  a  fact,  that  the  judg- 
ment had  been  paid,  satisfied  and  canceled  of  record  ;  that  pay- 
ments had  been  made  by  Lawrence  on  account  of  the  judgments 
for  principal  and  interest,  and  that  he  should  have  in  his 
hands  some  $3,000,  or  the  value  thereof,  beyond  the  payments. 
The  referee  found  that  the  plaintiff  was  entitled  to  one-half  of 
that  sum,  with  interest. 

It  was  claimed  by  the  defendant,  before  the  referee,  that 
the  evidence  established  the  fact  that  the  satisfaction  piece  of 
one  of  the  judgments,  in  respect  to  which  the  security  had 
been  given  upon  appeal,  was  given  by  mistake,  under  a  sup- 
position that  the  judgment  had  been  fully  paid,  whereas  the 
costs  alone  had  been  paid,  and  the  defendant  requested  a 
finding  as  to  the  amount  actually  paid  upon  such  judgment, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  91 


Gove  v.  Lawrence. 


and  as  to  whether  there  was  mistake  in  giving  the  satisfaction 
piece.  He  also  requested  findings  of  law  upon  the  question 
of  payment  of  the  judgments,  and  as  to  whether  the  defendant 
Lawrence,  knowing  of  the  mistake,  was  released  from  the  lia- 
bility of  surety.  The  referee  refused  to  find  further  than 
already  found  by  him. 

Moody  B.  Smith,  for  the  appellant. 

Charles  Jones,  for  the  respondent. 

Present — BARNARD,  P.  J.,  GILBERT  and  TAPPED,  JJ. 

By  the  Court — GILBERT,  J.  Upon  the  evidence,  the  case 
is  clear.  1st.  The  receipt  of  September  15th,  1863,  contains 
the  contract.  By  the  terms  of  that,  the  defendant  Lawrence 
agreed  to  hold  the  bonds  as  security  for  liabilities  of  his 
co-sureties  and  himself  on  undertakings  given  on  behalf  of 
Ward  &  Gove,  upon  appeals  by  them  to  the  Court  of 
Appeals,  in  certain  actions  between  them  and  Charles  Kelsey. 
It  appears  that  Kelsey  prevailed  in  these  appeals,  and  that 
the  judgments  recovered  were  duly  satisfied  by  him.  The 
satisfaction  of  these  judgments  discharged  the  defendant  and 
his  co-sureties  on  the  undertaking,  and  entitled  Ward  & 
Gove  to  a  return  of  the  bonds.  It  may  be  that,  if  any  fraud 
or  mistake  occurred  in  procuring  the  satisfaction  of  the  judg- 
ments, and  Lawrence  was  privy  to  it,  he  would  be  permitted 
to  avail  himself  of  the  facts,  as  giving  him  the  right  to  retain 
the  securities.  But  there  is  no  proof  of  such  mistake  or 
fraud,  nor  has  Kelsey  asserted  the  existence  of  either  of 
those  facts,  or  sought  in  any  way  to  invalidate  the  satisfac- 
tion pieces  of  the  judgments.  We  are  of  opinion  that  the 
evidence  on  this  subject  constitutes  no  defence  to  the  action. 

2d.  The  only  other  defence  is,  that  Ward  agreed  that 
Lawrence  might  apply  the  securities  in  payment  of  a  debt 
due  him  by  Ward  individually.  There  being  no  evidence 
of  the  assent  of  the  plaintiff  to  this  agreement,  or  of  any  act 


92  CASES  IN  THE  StJPKEME  COURT 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

of  ratification  on  his  part,  this  agreement  was  not  binding 
upon  him,  and  the  finding  of  the  referee  upon  the  facts,  as 
applied  to  this  case,  was  correct.  An  agreement  by  one 
member  of  a  copartnership  with  a  trustee  of  the  firm,  to 
divert  securities  belonging  to  the  firm,  in-  the  hands  of  the 
latter,  to  the  individual  use  of  the  former,  is  not  valid. 

The  judgment  must  be  affirmed,  with  costs. 

Judgment  affirmed. 


IN  THE  MATTER  OF  THE  PETITION  OF  NATHANIEL  FOED,  to 
vacate  an  assessment  for  the  repaving  of  Union  street,  etc., 
in  the  city  of  Brooklyn. 

(SPECIAL  TERM,  KINGS  COUNTY,  1872.) 

By  the  Brooklyn  city  charter  (Laws  1854,  chap.  384,  tit.  4,  §  24,  etc.),  the 
assessors  for  street  assessments,  after  hearing  parties  interested,  are  to 
make  a  report,  with  the  objections  presented  to  them,  which  the  com- 
mon council  are  to  refer  to  a  committee,  who,  after  a  hearing  pursuant 
to  notice  published,  are  to  report  to  the  common  council, — Held,  that  the 
omission  of  the  committee  to  publish  notice  of  hearing  was  fatal  to  the 
assessment. 

Held  also,  that  the  act  of  1871  (chap.  483),  limiting  the  authority  of  the  court, 
in  case  of  irregularity,  to  a  reduction  of  assessments  to  the  extent  of  its 
increase  by  the  irregularity,  though  retroactive,  was  inapplicable. 

A  local  assessment  for  street  improvements  is  not  a  tax,  within  the  mean- 
ing of  article  7,  section  13,  Constitution,  which  requires  every  law 
imposing  a  tax  to  state  the  tax  and  its  object,  &c. 

The  statutory  requirement  in  the  charter  of  Brooklyn  (§  5,  etc.,  tit.  4),  that 
a  district  of  assessment  shall  be  laid  out  preliminarily,  is  a  restriction 
merely  on  the  power  of  the  common  council  in  respect  to  work  ordered 
by  them. 

Commissioners  having  an  option  as  to  the  kind  of  pavement  to  be  used 
for  streets,  but  required  to  give  the  work  after  advertising  for  proposals 
to  the  lowest  bidder,  may  determine  the  particular  kind  to  be  laid  down 
by  inviting  proposals  for  different  kinds,  and  thereupon  awarding  to  the 
lowest  bidder  for  the  kind  selected. 

The  resignation  of  commissioners  appointed  by  the  statute  of  1868 
(chap.  460),  authorizing  repavement,  etc.,  of  a  street  in  Brooklyn, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  93 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

and  their  employment  on  and  compensation  for  part  of  the  work 
authorized,  will  not,  in  the  absence  of  proof  of  fraud  or  injury  to  the 
public  interests,  vitiate  the  assessment,  but  the  sums  embraced  in  their 
assessment  for  their  compensation  is  to  be  deducted  from  the  assessment 
under  the  law  of  1871  (chap.  483). 

THE  facts  are  stated  in  the  opinion. 
Jfvarts,  Southmayd  &  Choate,  for  the  petitioner. 
William  6'.  De  Witt,  opposed. 

GILBERT,  J.  The  statute  by  virtue  of  which  Union  street 
was  repaved  and  the  assessment  therefor  sought  to  be  vacated 
was  made  (Laws  of  1868,  chap.  460),  provides  that  the 
expense  of  the  improvement  "  shall  be  levied  and  collected 
in  the  same  manner  as  now  provided  by  law  with  reference 
to  grading  and  paving  streets  in  Brooklyn."  The  provisions 
of  law  thus  adopted  are  contained  in  the  charter  of  the  city. 
By  section  33  of  title  4  of  the  charter,  provision  is  made  for 
an  assessment  by  the  board  of  assessors  of  the  expense  of  the 
grading  and  paving  streets  upon  the  several  lots,  pieces  or 
parcels  of  land  benefited,  in  proportion  to  the  benefit  which, 
in  their  opinion,  the  same  shall  derive  from,  or  in  justice 
ought  to  be  assessed  for  the  said  improvement.  By  section 
24  of  the  same  title  the  board  of  assessors  are  required  to 
make  a  report  in  writing  of  the  assessment  so  made,  and, 
before  signing  the  same,  to  give  ten  days'  notice,  in  the  cor- 
poration newspapers,  of  the  time  and  place  where  the  parties 
interested  can  be  heard.  After  hearing  the  parties,  the  said 
board  is  required  to  complete  and  sign  the  report,  and  to 
return  it,  with  the  written  objections  of  the  parties  interested, 
to  the  common  council.  The  common  council  are  required 
to  refer  and  report  the  objections  to  a  committee  of  the  board  ; 
and  said  committee  is  required  to  "  publish  a  notice  in  the 
corporation  newspapers  for  ten  days  successively  to  the  par- 
ties interested,  of  the  time  and  place  when  and  where  they 
will  meet  to  hear  them  on  the  objections  and  report."  The 
committee  are  required  to  examine  the  matter  and  report  tc 


94  CASES  IN  THE  SUPREME  COURT          [1872. 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

the  common  council  its  views  and  opinions  respecting  the 
assessment.  Thereupon  the  common  council  are  required  to 
examine  the  matter,  and  either  correct  the  assessment,  send 
it  back  to  the  board  of  assessors  or  confirm  it,  and  their  con- 
firmation of  the  assessment  is  made  final  and  conclusive. 
Objections  were  made  by  the  petitioner  and  other  parties 
interested,  and  left  with  the  board  of  assessors,  and  were 
returned  with  their  report.  The  common  council  referred 
them  to  a  committee,  but  this  committee  gave  no  notice  to 
the  parties  interested,  affording  them  an  opportunity  to  be 
heard,  and  the  assessment  was  confirmed  without  any  hear- 
ing of  the  persons  assessed  or  any  of  them  by  said  committee 
or  by  the  common  council. 

I  am  of  opinion  that  the  omission  to  give  this  notice  was  a 
fatal  irregularity.  The  principle  is  very  familiar,  that  when 
a  special  authority  is  delegated  by  statute  to  particular  per- 
sons or  public  bodies  affecting  the  property  of  individuals 
against  their  will,  the  course  and  mode  of  proceeding  pre- 
scribed by  law  must  be  rigorously  pursued,  and  every  sub- 
stantial requirement  of  the  statute  giving  the  power  must  be 
strictly  fulfilled.  (Sharp  v.  Spier,  4  Hill,  76.)  The  duty 
imposed  on  the  board  of  assessors  and  on  the  common  council 
is  a  judicial  one  in  its  nature.  It  is  a  fundamental  rule  that 
in  all  judicial  or  quasi  judicial  proceedings  whereby  the  citi- 
zen may  be  deprived  of  his  property,  he  shall  have  notice  and 
an  opportunity  of  a  hearing  before  the  proceedings  can  become 
effectual.  The  statute  under  consideration  secures  and  enforces 
this  rule,  and  it  cannot  be  doubted  that  the  notice  which  was 
omitted  was  the  essence  of  the  proceeding,  and  essential  to  the 
validity  of  the  assessment.  The  act  of  April  13, 1871  (chap. 
483),  amendatory  of  the  statute  authorizing  this  kind  of  pro- 
ceeding to  vacate  an  assessment,  provides  that  the  court  shall 
only  have  authority  to  reduce  the  assessment  as  much  as  it  has 
been  increased  by  the  irregularity.  Here,  however,  the  irregu- 
larity goes  to  the  whole  assessment.  The  error  is  not  one  in 
amount  merely,  but  is  one  which  vitiates  the  entire  assess- 
ment. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  95 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

While  I  am  of  opinion  that  this  amendatory  statute  is 
retroactive  in  its  operation,  and  applies  to  all  proceedings 
instituted  after  it  took  effect,  yet  the  provision  cited  cannot 
be  applied  to  an  irregularity  like  this  for  the  reason  that  •  the 
proceeding  has  not  increased  an  otherwise  valid  assessment, 
but  has  imposed  an  assessment  that  is  wholly  invalid. 

It  follows  from  the  views  expressed  that  the  present  assess- 
ment must  be  set  aside,  and  that  a  new  assessment  is  necessary 
to  enable  the  city  authorities  to  collect  the  amount  which  has 
been  advanced  by  the  city  to  defray  the  expense  of  the 
improvement. 

Several  objections  have  been  urged  against  the  power  to 
impose  any  assessment  for  the  expense  of  the  improvement 
in  question.  As  these  objections  have  been  fully  argued  on 
both  sides,  and  as  they  involve  the  validity  of  a  new  assess- 
ment, it  is  proper  to  determine  the  questions  raised  by  them. 
First,  it  is  urged  that  the  authority  to  make  the  assessment 
having  been  conferred  only  by  a  section  of  the  statute  which 
refers  to  another  statute,  it  is  not  valid  because  section  13  of 
article  7  of  the  Constitution  provides  that  "  every  law  which 
imposes,  continues  or  revives  a  tax,  shall  distinctly  state  the 
tax  and  the  object  to  which  it  shall  be  applied,  and  it  shall 
not  be  sufficient  to  refer  to  any  other  law  to  fix  such  tax  or 
object."  The  answer  to  this  is  that  this  is  not  a  tax  in  the 
sense  in  which  that  word  is  used  in  the  section  of  the  Consti- 
tution cited,  but  is  a  local  assessment. 

A  tax  and  a  local  assessment  are  not  in  legal  contemplation 
the  same  thing,  although  both  emanate  from  the  same  source, 
namely,  the  sovereign  power  of  taxation.  The  distinction 
has  been  frequently  recognized  in  the  interpretation  of  stat- 
utes. The  principle  which  governs  courts  in  the  interpreta- 
tion of  Constitutions  and  legislative  acts  is  the  same.  The 
cardinal  object  in  each  ease  is  to  ascertain  the  intention  of  the 
authors  of  the  instrument.  When  the  language  is  plain  and 
unambiguous,  it  needs  no  interpretation.  But  when  words 
are  used  which  have  both  a  technical  and  a  popular  significa- 
tion, it  often  becomes  necessary  to  determine  which  significa- 


96  CASES  IN  THE  SUPREME  COURT          [1872. 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

tion  was  intended.  Thus,  In  the  Matter  of  the  Mayor  ^  etc., 
of  New  York  for  improving  Nassau  street  (11  J.  R.,  77),  sev- 
eral churches  were  included  within  a  street  assessment,  and 
they  claimed  to  be  exempt  from  its  operation  by  the  28th 
section  of  the  act  of  1813  for  the  assessment  of  taxes.  This 
section  enacted  that  "  no  real  estate  belonging  to  any  church 
shall  be  taxed  by  any  law  of  this  State."  The  court  held  that 
all  the  provisions  of  the  act,  including  the  exemption,  referred 
to  public  and  general  taxes  to  be  assessed  and  collected  for  the 
benefit  of  the  town,  county  or  State  at  large.  They  say  the 
word  "  taxes"  means  burdens,  charges  or  impositions  put  or 
set  upon  persons  or  property  for  public  uses,  and  this  is  the 
definition  which  Lord  COKE  gives  to  the  word  talliage  (2  Just., 
532),  and  Lord  HOLT  in  Carth.,  438,  gives  the  same  definition, 
in  substance,  of  the  word  "  tax."  The  legislature  intended 
by  that  exemption  to  relieve  religious  and  literary  institutions 
from  these  public  burdens.  But  to  pay  for  the  opening  of  a 
street  in  a  ratio  to  the  benefit  or  advantage  derived  from  it  is 
no  burden. 

Again,  in  Sharp  v.  Speir,  before  cited,  the  construction  of 
the  seventh  section  of  the  village  charter  of  Brooklyn  was 
under  consideration.  This  section  provided  that  "  whenever 
any  tax  of  any  description  on  lands,  &c.,  in  the  same  village 
shall  remain  unpaid,"  then,  after  having  taken  certain  pro- 
ceedings which  the  section  provided,  power  was  given  to 
cause  s'uch  lands  to  be  sold.  The  court,  BRONSON,  J.,  deliver- 
ing the  opinion,  observe  that  "  the  first  remark  upon  this 
section  is,  that  it  only  authorizes  the  sale  of  lands  for  the 
payment  of  a  tax,  and,  although  it  extends  to  a  tax  of  any 
description,"  still  it  includes  nothing  but  a  tax  of  some  kind. 
Our  laws  have  made  a  plain  distinction  between  taxes  which 
are  burdens  or  charges  imposed  upon  persons  or  property  to 
raise  money  for  public  purposes,  and  assessments  for  city  and 
village  improvement^,  which  are  not  regarded  as  burdens, 
but  as  an  equivalent  or  compensation  for  the  enhanced  value 
which  the  property  of  the  persons  assessed  has  derived  from 
the  improvement.  Many  other  cases  to  the  same  effect  might 


1872.]  OF  THE  STATE  OF  NEW  YORK.  97 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

be  cited,  but  these  are  sufficient  to  illustrate  the  distinction 
to  which  I  have  adverted.  The  Constitution  itself  contains 
a  plain  recognition  of  the  same  distinction,  for,  by  section 
nine,  of  article  eight,  the  legislature  is  required  to  restrict 
the  power  of  taxation,  assessment,  &c.,  of  municipal  cor- 
porations, so  as  to  prevent  abuses  in  assessments.  I  am  not 
aware  of  any  binding  adjudication  directly  upon  this  ques- 
tion. The  case  of  llanlon  v.  Supervisors,  <£c.  (57  Barb., 
383),  shows  that  this  point  was  not  considered  by  my  brother 
TAPPEN.  Moreover,  that  was  a  decision  at  Special  Term,  and 
it  is  in  conflict  with  a  decision  of  this  court  at  General  Term 
in  the  case  of  People  ex.  re'L,  The  Nicolson  Pavement  Co. 
v.  Mayor  is  not  reported.  The  question  has  been  before  the 
Court  of  Appeals  twice,  but  on  each  occasion  the  case  was 
decided  upon  other  grounds.  The  opinion  of  the  court  on 
this  subject,  however,  was  expressed,  and  such  expressions 
deserve  the  utmost  consideration.  In  the  case  of  the  People 
v.  The  Supervisors  of  Chenango  (4  Seld.,  317),  the  court,  in 
discussing  the  question  before  me,  use  this  language :  "  By 
the  rule  for  construing  statutes  and  acts  of  public  bodies,  the 
taxes  spoken  of  in  the  fourth  section  of  the  seventh  article, 
which  the  legislature  are  prohibited  from  imposing,  continu- 
ing or  reviving,  unless  three-fifths  of  all  the  members  elected 
to  either  house  are  present  when  the  final  vote  is  taken, 
means  such  tax  as  is  elsewhere  spoken  of  in  the  same  article, 
viz.,  a  tax  general  in  its  operation  and  coextensive  with  the 
State."  In  Darlington  v.  The  Mayor  (31  1ST.  Y.  K.,  186), 
the  court,  DENIO,  C.  J.,  delivering  the  opinion,  held  that 
"  article  seven  of  the  Constitution  relates  to  the  State  finances, 
and,  taken  together,  it  constitutes  the  financial  system  of  the 
State,  so  far  as  concerns  constitutional  restraints.  The  affairs 
of  cities  and  counties,  so  far  as  they  are  regulated  by  the  Con- 
stitution, are  treated  of  in  other  provisions."  But  the  point  was 
directly  adjudicated  in  the  case  of  City  of  Peoria  v.  Kidder 
(26  111.,  357).  The  Constitution  of  Illinois  (art.  9,  §  2)  pro- 
vides that  "the  general  assembly  shall  provide  for  levying 
tax  by  valuation,  so  that  every  person  or  corporation  shall 
LAXSTXG  —  VOL.  VL  13 


98  CASES  IN  THE  SUPREME  COURT       [1872. 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

pay  a  tax  in  proportion-to  the  value  of  his  or  her  property ; 
such  value  to  be  ascertained  by  some  person  or  persons  to  be 
elected  or  appointed  in  such  manner  as  the  general  assembly 
shall  direct,  and  not  otherwise."  The  charter  of  the  city  dt 
Peoria  provided  that,  when  a  public  street  was  opened  or 
improved,  commissioners  should  be  appointed  by  the  County 
Court,  to  assess  upon  the  property  benefited  the  expense  of 
the  improvement  in  proportion  to  the  benefit.  These  pro- 
visions were  held  to  be  constitutional,  on  the  ground  that 
assessments  of  this  character  were  not  such  taxation  as  was 
contemplated  by  the  general  terms  which  the  Constitution 
employed.  (See,  also,  Cooley's  Const.  Lim.,  498,  499,  and 
cases  cited.)  I  am  of  opinion,  therefore,  that  this  objection 
is  not  well  founded.  v 

The  question  involved  in  the  second  objection,  pre- 
sented by  the  petitioner,  was  decided  by  this  court  at 
General  Term,  in  the  case  of  The  People  ex  rel.  The 
Nicolson  Pavement  Company  v.  The  Mayor,  before  referred 
to.  It  was  held  in  that  case  that  the  statutory  require- 
ment, that  a  district  of  assessment  should  be  laid  out 
preliminarily,  was  a  restriction  merely  on  the  power  of  the 
common  council  in  respect  to  work  ordered  by  them.  This 
decision  covers  the  principle  involved  in  this  objection,  and 
must  be  deemed  res  adjudicate. 

I  am  unable  to  perceive  any  valid  objection  to  the 
action  of  the  commissioners  in  advertising  for  proposals 
for  different  kinds  of  pavement  before  determining  the 
particular  kind  to  be  laid  down.  The  statute  does  not, 
in  terms  or  by  implication,  require  such  previous  deter- 
mination ;  and  it  is  quite  probable  that  the  relative  cost 
of  the  different  kinds  of  pavement  for  which  bids  were 
asked,  formed  a  material  element  of  the  determination 
which  they  actually  made.  It  was  certainly  proper  for 
the  commissioners  to  consider  the  cost  before  exercising 
the  option  given  them  by  the  statute ;  and  I  know  of  no 
way  by  which  they  could  have  ascertained  such  cost  as  cer- 
tainly as  by  inviting  proposals.  The  contract  was  in  fact 


1872.]  OF  THE  STATE  OF  NEW  YORK.  99 

In  the  Matter  of  the  Petition  of  Nathaniel  Ford. 

given  to  the  lowest  bidder  for  the  kind  of  pavement  adopted. 
The  case  of  The  Assessment  against  William  T.  Blodgett,  in " 
the  Court  of  Appeals,  is  not  applicable,  for  the  reason  that,  in 
that  case,  there  was  a  violation  of  a  positive  statutory  require- 
ment. 

With  respect  to  th  fourth  objection,  it  appears  that  two 
of  the  commissioners,  named  in  the  statute  to  make  the 
improvement  in  question,  resigned,  and  that  they  were  after- 
ward employed,  and  received  compensation  for  doing  a  part 
of  the  work  authorized  by  the  statute,  and  that  this  resigna- 
tion was  made  and  accepted  for  the  purpose  of  enabling 
them  to  engage  in  the  subsequent  employment.  No  actual 
fraud  or  injury  to  the  public  interests  in  any  form  is  shown. 
It  is  contended  by  the  petitioner  that  these  facts  vitiate  the 
entire  assessment.  I  cannot  concur  in  this  view.  The  practice 
is  certainly  very  reprehensible,  and  if  sanctioned  might  lead  to 
great  abuses ;  still,  to  set  aside  the  whole  assessment  on  this 
ground  would  have  the  effect  to  relieve  the  parties  immedi- 
ately interested  from  a  large  liability  which  the  acts  com- 
plained of  have  had  no  effect  in  producing,  and  to  cast  the 
burden  to  that  extent  upon  others  who  ought  not  to  be 
charged  with  it.  This  would  accomplish  greater  injustice 
than  if  the  irregularity  alleged  were  left  to  go  unredressed. 
A  more  just  and  equitable  course  would  be  to  deduct  from 
the  assessment  all  sums  embraced  in  it  for  compensation  to 
the  commissioners  who  resigned.  And  I  think  the  court  has 
no  power,  since  the  act  of  April  13th,  1871,  to  grant  a  greater 
measure  of  relief  than  this.  This  act  is  retroactive,  so  far  as 
to  authorize  and  require  the  reduction  of  assessments,  whether 
old  or  new,  in  cases  instituted  after  the  act  became  operative. 
This  was  held  expressly  by  the  General  Term  in  the  first 
department,  In  the  matter  of  the  Petition  of  Michael  Ti'accy 
{59  Barb.,  525),  and  is  in  accordance  with  general  principles, 
especially  in  cases  where  violations  of  trusts  or  duties  affect 
not  only  the  cestuis  que  trust,  but  innocent  third  persons. 

If  I  am  correct  in  the  construction  given  to  the  act  of 
April  13th,  1871,  then  all  the  remaining  objections  can  be 


100  CASES  IN  THE  SUPREME  COURT         [Nov. 

The  National  Life  Insurance  Co.  v.  Minch. 

obviated  by  striking  from  the  assessment  such  items,  if  any? 
as  are  not  authorized  by  law.  It  would  serve  no  useful  pur 
pose  to  determine  the  questions  arising  upon  these  latter 
objections  at  this  time.  For  this  reason  I  have  not  given 
them  such  consideration  as  would  justify  me  in  deciding  them. 
The  prayer  of  the  petitioner  is  granted  with  costs. 


THE  NATIONAL  LIFE  INSURANCE  COMPANY  OF  THE  UNITED 
STATES  OF  AMEBICA  v.  PHILIP  MINCH,  Administrator  of, 
etc.,  of  Anna  C.  Minch,  deceased. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

In  an  action  by  a  life  insurance  company  to  recover  back  from  a  husband , 
as  his  wife's  administrator,  the  amount  paid  to  him  upon  a  policy  of 
insurance  upon  the  life  of  his  wife,  upon  the  ground  that  the  assured, 
the  defendant  and  plaintiff's  medical  examiner,  had  conspired  to  cheat 
and  defraud  the  plaintiff,  by  means  of  false  and  fraudulent  representa- 
tions in  obtaining  the  insurance,  —Held  (DANIELS,  J.,  dissenting),  that  in 
order  to  maintain  the  action  it  must  appear  that  the  assured  had 
knowledge  of  the  existence  of  the  fraud. 

False  representations,  fraudulently  made  by  others  in  the  application  for 
insurance,  and  of  which  the  assured  is  shown  to  have  been  ignorant,  do 
not  charge  the  assured  with  participation  in  the  fraud  or  knowledge  of  it. 
(DANIELS,  J.,  dissenting.) 

Nor  do  false  and  fraudulent  representations  in  the  certificate  of  the  insurer's 
medical  examiner,  made  without  the  knowledge  of  the  assured.  (Id.) 

EXCEPTIONS  ordered  to  be  first  heard  at  General  Term. 

This  action  was  brought  to  recover  back  $2,000  and  inte- 
rest, paid  by  the  plaintiff  to  the  defendant  as  administrator, 
etc.,  of  Anna  C.  Minch,  deceased,  in  satisfaction  of  a  life 
insurance  policy,  issued  by  the  plaintiff  to  the  deceased. 

The  policy  was  issued  on  the  29th  day  of  March,  1869,  and 
provided  for  payment  to  the  deceased  of  $2,000  on  the  29th 
day  of  March,  1894,  and  in  case  the  insured  should  die  pre- 
vious to  that  time,  then  within  sixty  days  after  due  notice  and 
proof  of  her  death.  The  premium  was  $31.36  paid,  and  the 
like  sum  to  be  paid  semi-annually  thereafter. 


1871.]          OF   THE  STATE  OF  NEW  YORK.  1Q1 

The  National  Life  Insurance  Co.  v.  Minch. 

The  insured  died  on  the  8th  day  of  July,  1869,  and  the 
$2,000  insurance  was  paid  on  the  14th  day  of  October,  1869, 
to  the  defendant,  as  administrator,  after  due  notice  and  proof 
of  death  to  the  plaintiff. 

The  grounds,  as  stated  in  the  complaint,  on  which  the  plain 
tiff  claimed  to  recover  back  said  money  were,  that  the  deceased, 
the  defendant,  and  Dr.  Potter,  the  plaintiff's  medical  examiner, 
combined  and  confederated  together  to  cheat  and  defraud  the 
plaintiff,  and,  for  the  purpose  of  doing  so,  about  the  17th  day 
of  March,  1869,  orally  and  in  writing,  falsely  and  fraudu- 
lently represented  to  the  plaintiff,  its  agents  and  officers,  in 
applying  to  them  for  a  policy  of  insurance  upon  her  life,  that 
she  had  not  had  and  did  not  then  have  any  serious  illness, 
local  disease  or  any  disorder,  infirmity  or  weakness;  that 
there  were  no  indications  upon  her  of  any  disease  of  ulcer, 
and  that  she  was  then  in  all  respects  a  healthy  risk  and  safely 
insurable ;  that  the  policy  was  issued  upon  such  false  repre- 
sentations; that  at  the  time  of  making  them  the  insured 
had  a  cancer  which  subsequently  destroyed  her  life;  that 
after  her  death  the  defendant  and  Potter  "  falsely  and  fraudu- 
lently represented  to  the  plaintiff*  that  the  cause  of  her 
death  was  pneumonia  or  inflammation  of  the  lungs,  and  not 
any  other  disease ;  that  she  had  no  other  disease,  and  that 
there  were  no  marks  of  previous  disease  or  injury  on  her 
person ;  that  the  plaintiff,  relying  upon  these  representations, 
after  due  notice  and  proof  of  her  death  had  been  furnished  to 
the  plaintiff,  and  on  or  about  the  llth  day  of  September, 
1869,  duly  paid  to  the  defendant,  as  administrator  of  said 
deceased,  the  $2,000  insurance. 

The  answer  put  in  issue  the  material  allegations  of  the  com- 
plaint, except  the  issuing  of  the  policy,  notice  and  proof  of  the 
death  of  the  deceased,  and  payment  to  the  defendant  as 
administrator.  The  case  was  tried  at  the  Montgomery  County 
Circuit  in  June,  1871,  before  the  Hon.  E.  H.  ROSEKKANS  and 


On  the  trial  the  plaintiff  put  in  evidence  deceased's  appli- 
iation  for  insurance,  the  statement  called  a  "  friend's  certifi- 


102  CASES  IN  THE  SUPREME  COURT          [Xov., 

The  National  Life  Insurance  Co.  •».  Minch. 

cate,"  and  certain  questions  put  by  the  plaintiff  to  its  medical 
examiner,  Dr.  Potter,  and  his  answers  thereto,  called  "medi- 
cal examiner's  certificate ;"  the  policy  of  insurance ;  and  also 
what  are  termed  in  the  case  "  proofs  of  death,"  containing  a 
statement  of  Dr.  Potter,  the  plaintiff's  medical  examiner,  as 
to  the  time  and  cause  of  the  death  of  the  insured. 

Other  evidence  was  given,  which  is  sufficiently  referred  to  in 
the  opinion. 

At  the  close  of  the  testimony,  several  requests  were  made 
to  the  justice  by  the  plaintiff 's  counsel  to  make  certain  rulings 
and  to  submit  certain  questions  to  the  jury,  which  were 
refused  and  exceptions  taken  by  the  plaintiff's  counsel. 

The  court  also  held  as  stated  in  the  opinion,  and  directed 
that  a  nonsuit  be  entered,  to  which  several  rulings  the  plain- 
tiff's counsel  duly  excepted. 

The  court  also  directed  that  the  bill  of  exceptions  to  be 
made  be  first  heard  at  General  Term,  and  that  judgment  in 
the  meantime  be  suspended. 

J.  E.  Lowery,  for  the  plaintiff. 

J.  M.  Carroll,  for  the  defendant. 

Present — MILLER,  P.  J. ;  PARKER  and  DANIELS,  JJ. 

By  the  Court — MILLER,  P.  J.  At  the  close  oi  the  trial  of 
this  action  at  the  Circuit  Court,  the  judge  made  several  rul- 
ings, to  which  exceptions  were  taken  before  directing  a  non- 
suit ;  and,  among  other  things,  he  ruled  that  there  must  be 
proof  of  a  combination,  conspiracy  or  understanding  to  defraud 
the  company  to  which  Mrs.  Minch  was  a  party,  and  that  there 
was  not  sufficient  evidence  from  which  the  jury  could  find 
such  conspiracy.  The  plaintiff's  counsel  excepted  to  this 
decision ;  and  if  the  judge  committed  no  error  in  thus  hold- 
ing, then  the  plaintiff  was  properly  nonsuited  upon  this  ground 
alone,  and  the  action  could  not  be  maintained. 

I  think  that  the  judge  was  clearly  right  in  the  ruling  which 


1871.]  OF  THE  STATE  OF  NEW  YORK.  103 

The  National  Life  Insurance  Co.  v.  Hindi. 

he  made,  and  as  one  good  ground  was  enough  to  sustain  a 
nonsuit,  the  other  rulings  are  of  no  consequence. 

The  action  was  predicated  upon  an  alleged  fraudulent  com- 
bination and  confederacy  between  Davison  Potter,  the  medi- 
cal examiner  of  the  plaintiff',  the  defendant  and  his  wife,  Mrs. 
Minch.  It  was  alleged  and  claimed,  upon  the  trial,  that  the 
parties  named  had  combined  and  confederated  together  to 
defraud  the  plaintiff ;  and  that,  with  the  intent  to  deceive, 
cheat  and  defraud  the  plaintiff,  they  made  the  false  and  fraud- 
ulent representations  stated  in  the  complaint,  by  means  of 
which  the  policy  of  insurance  was  obtained  on  the  life  of  Mrs. 
Minch. 

Now,  it  is  quite  plain  that  if  there  was  no  evidence  that 
Mrs.  Minch  had  any  knowledge  of  any  combination  and  c6n- 
spiracy,  or  of  any  intent  to  cheat  and  defraud  the  plaintiff, 
then  there  is  an  utter  failure  to  establish  the  cause  of  action 
alleged,  and  no  case  is  made  out  which  entitles  the  plaintiff 
to  recover.  So  far  as  relates  to  Mrs.  Minch,  at  least,  the 
proof  fails  to  establish  the  allegations  made,  and  as  she  was 
not  a  party  to  the  combination,  the  action  must  fall  to  the 
ground. 

There  is  no  evidence  in  the  case  which  establishes  that  the 
parties,  when  together,  ever  exchanged  a  word  between  them- 
selves on  the  subject.  It  appears  that  the  defendant  applied 
to  Adams,  the  agent  of  the  company,  for  the  policy  of  insu- 
rance. Adams  filled  up  the  application,  and  took  the  answers 
to  the  questions  propounded  to  Mrs.  Minch,  the  applicant, 
from  her  husband,  at  his  (Adams')  office,  and  sent  the  appli- 
cation by  the  husband  to  Mrs.  Minch.  It  was  returned  to 
Adams  by  Mr.  Minch,  with  a  mark  purporting  to  be  Mrs. 
Minch's  mark  attached  at  the  end  of  it.  Adams  considered 
it  necessary  that  it  should  be  witnessed,  and  about  one  week 
afterward  he  went  to  Mrs.  Minch,  saw  her  personally,  and  asked 
if  she  had  affixed  her  mark  to  the  application.  She  replied 
that  she  had,  and  he  then  signed  his  name  as  a  witness.  He 
did  not  interrogate  her  in  regard  to  it.  The  proof  also  shows 
that  Mrs.  Minch  was  a  German,  could  not  read  or  write  Eng- 


104  CASES  IN  THE  SUPREME  COURT         [Nov. 

The  National.  Life  Insurance  Co.  v.  Minch. 

lish,  and  spoke  the  English  language  very  imperfectly.  The 
application  was  not  made  to  her,  she  did  not  know  the  con- 
tents of  it,  and  they  were  not  stated  to  her ;  that  Dr.  Potter, 
at  the  request  of  Adams,  made  a  careful  examination  of  the 
deceased.  He  had  no  conversation  with  Mr.  Minch  in  rela- 
tion to  the  insurance  of  his  wife's  life,  before  the  policy  was 
issued,  nor  with  Mrs.  Minch,  except  upon  the  examination, 
and  he  testifies  that  she  could  only  talk  sufficiently  to  get 
along  with  the  examination ;  that  he  could  not  talk  with  her, 
as  she  talked  German,  and  he  could  not  carry  on  a  general 
conversation  with  her  perfectly  and  accurately.  He  did  not 
know  the  contents  of  the  application,  never  having  seen  it 
until  the  trial.  Nor  is  there  any  evidence  that  either  Minch 
or  his  wife  ever  saw  or  knew'  of  the  contents  of  Dr.  Potter's 
certificate. 

It  is  manifest,  from  the  testimony,  that  Mrs.  Minch  was  in 
no  way  a  party  with  her  husband  and  Potter  to  any  fraudu- 
lent combination.  To  constitute  a  fraudulent  conspiracy 
against  a  party,  it  must  be  proved  that  the  person  charged  had 
knowledge  of  its  existence  and  the  purpose  for  which  it  was 
designed.  Such  knowledge  is  wanting  in  this  case,  and  there 
is  not  a  particle  of  proof  that  Mrs.  Minch  knew  anything  in 
regard  to  it.  So,  also,  to  make  a  party  liable  for  fraudulent 
representations,  they  must  be  known  to  be  such  by  the  party 
making  them,  and  such  party  cannot  know  them  to  be  false 
without  having  knowledge  that  they  were  made  and  what 
they  actually  were. 

As  Mrs.  Minch  signed,  or  rather  affixed  her  mark  to,  the 
application,  she  would,  perhaps,  be  bound  by  the  representa- 
tions which  it  contained,  as  warranties,  without  knowing 
what  they  were,  but  she  could  not  be  affected  by  them  as 
fraudulent,  without  knowledge. 

As  she  had  no  knowledge  what  representations  were  actu- 
ally made  upon  the  application,  they  were  not  fraudulent  as 
to  her,  although  they  were  false. 

Even  if  the  representations  made  by  Dr.  Potter's  certifi- 
cate of  examination  were  false  and  fraudulent,  as  the  deceased 


1871.]  OF  THE  STATE  OF  NEW  YORK.  105 

People  ex  rel.  Am.  Linen  Thread  Co.  «.  Assessors  of  Vil.  of  Mechanicville. 

had  no  knowledge  of  its  contents,  she  cannot  be  responsible 
for  it,  or  affected  by  them  as  fraudulent.  She  was  not  respon- 
sible for  any  fraudulent  representations  he  might  make  as  the 
medical  examiner  of  the  company  without  her  knowledge  or 
consent. 

As  the  judge  was  right  in  his  ruling  upon  the  point  dis- 
cussed, he  properly  refused  to  submit  the  case  to  the  jury 
upon  any  of  the  propositions  made  by  the  plaintiff 's  counsel, 
and  properly  refused  the  requests  made ;  nor  was  there  any 
error  in  the  admission  or  rejection  of  evidence.  The  nonsuit 
was  right,  and  judgment  must  be  ordered  for  the  defendant 
upon  the  verdict. 

PARKER,  J.,  concurred  ;  DANIELS,  J.,  dissented. 

Ordered  accordingly. 


THE  PEOPLE  ex  rel.  THE  AMERICAN  LINEN  THREAD  COM 
PANT  v.  THE  ASSESSORS  OF  THE  VILLAGE  OF  MECHANIC- 
VILLE. 

(GENERAL  TEEM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

A  writ  of  certiorari  issues  to  correct  an  erroneous  assessment,  made  by 
the  assessors. 

The  application  of  the  rule  for  the  assessment  of  property  belonging  to 
corporations,  in  People  v.  Assessors  of  Brooklyn  (39  N.  Y.,  81),  is  nol  affected 
by  the  fact  that  the  real  estate  of  the  corporation  is  entirely  within  tho 
assessors'  jurisdiction. 

When  the  evidence  presented  to  the  assessors  by  an  applicant  for  the 
reduction  of  assessments  is  uncontradicted  and  the  facts  clear  beyond  dis- 
pute, they  must  be  governed  by  such  evidence. 

And  they  should  hesitate  to  disregard  the  positive  affidavit  of  the  applicant, 
and  direct  proof. 

But  where  from  information  received  from  others  and  the  affidavits  they  are 
led  to  disbelieve  the  sworn  statements  of  the  applicant,  the  information  is 
a  proper  subject  for  their  consideration. 

Whether  the  omission  to  inform  the  applicant,  of  ex  parte  affidavits,  con- 
sidered by  them,  would  not  affect  the  assessment,  quere. 

But  such  affidavits  are  not  to  be  regarded  as  a  part  of  the  proceedings  of 
the  assessors,  upop  certiorari  brought  to  review  such  proceedings,  if  it 
does  not  appear  that  they  were  read  as  evidence  by  the  assessors,  and 
considered  by  them  in  making  their  decision. 
LANSING — VOL.  VL         14 


106  CASES  IN  THE  SUPREME  COURT          [Nov., 

People  ex  rel.  Am.  Linen  Thread  Co.  ».  Assessors  of  Vil.  of  Mechanicville. 

WRIT  of  certiorari  for  the  purpose  of  correcting  an  alleged 
erroneous  assessment  made  by  the  defendants,  as  assessors, 
against  the  real  and  personal  property  of  the  relator  in  the 
village  of  Mechanicville  for  the  year  1871. 

The  relator  was  a  stock  corporation,  with  a  capital  of 
$70,000. 

The  assessors  for  the  year  1871  assessed  the  relator : 

For  real  estate $125 , 000  00 

Personal  property 29  >  786  81 

Total $154,784  81 

They  also  in  the  assessment  roll  stated  the  capi- 
tal paid  in  and  secured  to  be  paid  in  at   ....     $70?  000  00 
And  deducted  amount  paid  out  for  real  estate,      40 > 213  19 

Leaving  personal  estate  or  stock $29)786  81 

The  return  to  the  writ  shows  that  at  the  time  the  defend- 
ants met  to  hear  the  parties  aggrieved,  and  to  correct  the 
assessment  roll,  the  relator  appeared  before  them  and  pre- 
sented affidavits  which  showed,  1st.  That  the  real  estate 
belonging  to  them  was  worth  not  to  exceed  $45,000,  but  cost 
$40,213.19.  And  2d.  That  the  capital  stock  of  the  company 
was  worth  but  eighty  per  cent  of  its  nominal  amount,  and 
claimed  to  have  the  assessment  against  the  relator  reduced 
accordingly ;  and  further,  that  in  case  no  reduction  in  the 
assessment  of  the  real  estate  was  made,  the  assessment  for 
personal  property  should  be  entirely  stricken  from  the  roll, 
inasmuch  as  the  assessed  value  of  the  real  estate  would,  in 
such  case,  exceed  the  actual  value  of  the  capital  stock  of  the 
company  as  fixed  and  ascertained  by  the  assessors. 

The  return  also  states  that  although  Lewis  E.  Smith,  the 
treasurer  of  the  relator,  swore  before  said  assessors  that  the 
stock  of  said  Linen  Thread  Company  had  been  worth  only 
eighty  per  cent  of  its  par  value  since  February  16,  1871,  yet 
we,  the  said  assessors,  from  our  knowledge  of  said  company 
and  its  property  and  affairs,  and  from  the  fact  of  its  having 
on  the  lirst  day  of  January,  1871,  declared  a  dividend  of 


1871.]  OF  THE  STATE  OF  NEW  YORK.  107 

People  ex  rel.  Am.  Linen  Thread  Co.  «.  Assessors  of  Vil.  of  Mechanicville. 

ten  per  cent  upon  its  stock,  and  from  the  fact  that  one  of 
them  having  been  repeatedly  informed  since  February  16, 
1871,  and  before  June  8,  1871,  by  different  stockholders  of 
said  company  and  from  the  said  Howland  (one  of  the  assessors) 
having  heard  the  said  Lewis  E.  Smith  since  the  month  of  Feb- 
ruary, 1871,  and  repeatedly  prior  to  that  time,  and  during  the 
past  year,  and  other  stockholders  of  said  company  say,  that  the 
stock  of  said  company  was  worth  at  least  par,  or  one  dollar  for 
each  dollar  of  its  capital  stock,  and  from  the  affidavits  then  and 
there  before  them,  annexed  and  made  by  the  persons  hereafter 
mentioned,  did  not  believe  or  credit  the  sworn  statement  of 
Lewis  E.  Smith,  as  to  the  value  ot  said  stock.' 

That  on  said  8th  day  of  June,  1871,  the  said  assessors,  had 
before  them,  and  in  their  possession,  the  annexed  affidavits  of 
several  persons  who  were  named,  who  severally  swore  to  the 
value  of  the  real  and  personal  property  of  the  said  company, 
and  that  they  had  said  affidavits  before  them  then,  and  in 
their  possession  before  and  at  the  time  they  passed  upon  and 
decided  the  application  of  said  company  for  a  reduction  of  its 
assessment. 

It  also  appeared  that  the  attention  of  the  relator  or  his 
counsel  was  not  called  to  these  affidavits,  nor  called  to  the 
fact  that  they  were  then  present  for  use  or  used  upon  the 
hearing  before  the  assessors  on  the  application  for  a  reduction 
of  the  amount  of  the  assessment. 

These  affidavits  showed  the  real  estate  to  be  worth 
$125,000,  and  had  been  used,  upon  a  motion  made  by  the 
relator,  against  the  defendants  for  a  mandamus.  The  defend- 
ants refused  to  reduce  or  alter  the  assessment  roll  upon  the 
application  of  the  relator,  and  this  writ  of  certiorari  was 
issued. 

A.  Pond,  for  the  relator. 

C.  A.  Waldron,  for  the  defendants. 

Present — MILLER,  P.  J. ;  PABKEB  and  DANIELS,  JJ. 


108  CASES  IN  THE  SUPREME  COURT         [Nov., 

People  ex  rel.  Am.  Linen  Thread  Co.  v.  Assessors  of  Vil.  of  Mechanicville. 

MILLER,  P.  J.  The  assessment  made  by  the  assessors  was, 
in  form,  I  think,  in  accordance  with  the  decision  of  the 
Court  of  Appeals  in  case  of  The  People  v.  The  Board  of 
Assessors  of  Brooklyn  (39  N.  Y.,  81).  That  case  holds  that, 
as  against  corporations,  the  rule  of  taxation  is  correct  when 
based  upon  the  amount  of  capital  paid  in,  or  secured  to  be 
paid  in,  after  deducting  the  amount  of  such  capital  actually 
paid  out  for  real  estate,  assessing  the  remaining  capital  at  its 
actual  value,  and  leaving  the  real  estate  to  be  assessed  the 
same  as  other  real  estate  of  individuals  in  the  town  or  ward 
where  situated,  at  its  actual  value,  whether  more  or  less  than 
the  price  paid. 

There  is  no  injustice  in  such  a  course,  as  it  would  enable 
the  assessors  to  add  to  the  value  of  the  real  estate  such  an 
amount  as  was  authorized  by  the  facts.  •  If  the  real  estate 
has  increased  in  value  beyond  its  first  cost,  there  is  no  good 
reason  why  the  increase  should  not  be  added.  Such  an 
addition  does  not  make  a  double  taxation,  but  merely  compels 
the  corporation  assessed  to  pay  taxes  for  the  full  value  of  its 
property  at  the  time. 

It  does  not  prevent  the  application  of  the  rule  established 
in  39  ISl.  Y.,  81,  because  in  that  case  the  corporation  owned 
a  large  amount  of  real  estate  located  outside  of  the  territorial 
limits  of  the  assessors,  and  beyond  their  jurisdiction,  and 
there  is  no  such  distinction  between  the  two  cases  as  would 
authorize  a  disregard  of  the  doctrine  laid  down  in  the  case 
cited. 

It  is  insisted  that  the  assessors  erred  in  refusing  to  strike 
out  the  assessment  for  personal  property,  and  to  reduce  the 
assessment  of  the  real  estate,  which  the  evidence  before  them 
upon  the  hearing  showed  did  not  exceed  $45,000  in  value. 

According  to  the  provisions  of  the  statute  (S.  L.  1851,  chap. 
IT,  §  6,  as  amended  by  S.  L.  of  1857,  chap.  53,  §  8),  whenever 
any  person  shall  apply  to  the  assessors  to  reduce  the  value 
of  his  real  and  personal  estate,  as  set  down  in  the  assessment 
roll,  it  is  made  the  duty  of  the  assessors  to  examine  such  per- 


1871.]          OF  THE  STATE  OF  NEW  YORK.  109 

People  ex  rel.  Am.  Linen  Thread  Co.  v.  Assessors  of  Vil.  of  Mechanicville. 

son,  under  oath,  &c. ;  and,  after  such  examination,  "  they  shall 
fix  the  value  thereof  at  such  sum  as  they  shall  deem  just." 

This  statute  has  been  the  subject  of  judicial  interpretation 
in  the  courts  of  this  State.  In  The  People  v.  Reddy  (43 
Barb.,  544)  the  applicant  before  the  assessors  testified  that 
he  had  not  the  personal  property  for  which  he  was  assessed ; 
and  the  court  held  that  the  assessors  were  bound  to  take  his 
statement  on  that  subject.  In  reference  to  the  statute  the 
court  say :  "  This  provision  does  not  give  the  assessors  any 
right  to  fix  such  value  arbitrarily  or  capriciously.  They  act 
judicially  in  fixing  such  value,  and  are  called  upon  to  pass 
upon  the  evidence  adduced  before  them ;  and  when  they 
have  no  ground  in  such  evidence  to  fix  a  valuation  different 
from  that  sworn  to  by  the  person  applying  for  such  reduction, 
they  are  bound,  I  think,  to  follow  his  statement  under  oath, 
as  much  as  the  assessors  were  formerly  required  to  fix  such 
value  at  the  sum  specified  in  the  affidavit  required  in  such 
cases,"  &c.  It  is  also  said,  after  stating  that  the  object  of 
the  amendment  was,  to  allow  assessors  to  make  an  oral 
examination  of  the  applicant,  as  the  assessors  may  think 
proper,  "  But  the  assessors  must  act  upon  the  evidence  before 
them,  like  all  other  officers  acting  in  a  judicial  capacity,  and 
fix  the  valuation  at  just  such  a  sum  as  will  be  warranted  by 
the  evidence" 

In  Tlie  People  v.  Fwguson  (38  K  Y.,  92)  the  chief  judge, 
in  discussing  the  subject  of  the  duties  of  assessors  in  making 
corrections,  says :  "  It  was  the  duty  of  the  assessors  to  act 
upon  the  evidence  before  them,  and  to  adjudge  how  much 
the  actual  value  of  the  stock  was  reduced  by  these  contingent 
liabilities,  and  to  deduct  from  the  assessment  accordingly. 
The  evidence,  as  presented,  showed  that  the  reduction  would 
more  than  equal  the  surplus  as  found  by  the  assessors ;  and 
there  was  nothing  in  contradiction  or  disparagement  of  the 
evidence.  Their  action  is  judicial,  and  to  be  governed  by 
the  evidence  before  them."  As  the  assessors  act  judicially, 
they  have  the  power  to  administer  oaths  and  to  hear  testi- 
mony j  and  it  is  their  duty  to  weigh  the  effect  of  the  evi 


110  CASES  IN  THE  SUPREME  COURT        [Nov., 

People  ex  rel.  Am.  Linen  Thread  Co.  ®.  Assessors  of  Vil.  of  Mechanicville. 

dence,  to  judge  as  to  its  credibility,  compare  it  with  the  law, 
and  decide  the  question  which  is  to  be  determined.  (Barhyte 
v.  Shepherd,  35  N.  Y.,  251.)  Nor  are  the  assessors  con- 
cluded by  the  statement  alone  of  the  applicant ;  and  they 
may,  in  the  exercise  of  their  general  powers,  make  further 
inquiries.  (People  v.  Fredericks,  48  Barb.,  173 ;  People  v. 
Halsey,  36  How.,  48T,  502,  503.) 

From  the  authorities  cited,  it  may  be  considered  as  an 
established  principle  that  when  the  evidence  is  uncontra- 
dicted  and  the  facts  clear,  beyond  dispute,  the  assessors  are 
bound  to  act  in  accordance  with,  and  must  be  governed  by, 
the  evidence  presented  to  them  ;  and  when  there  is  a  positive 
affidavit  of  the  applicant,  and  direct  proof,  there  should  be 
considerable  hesitation  in  disregarding  such  evidence.  If  the 
person  willfully  swears  falsely  on  such  examination  before  the 
assessors,  he  is  deemed  guilty  of  wrillful  and  corrupt  perjury, 
under  the  provisions  of  the  section  before  cited. 

In  assessing  the  value  of  the  stock  at  par,  the  assessors  based 
their  determination  upon  the  ground  that,  from  information 
received  from  other  parties  as  well  as  the  affidavits  before 
them,  they  did  not  believe  the  statement  of  the  treasurer  of 
the  company.  So  far  as  relates  to  the  information  received 
from  others,  I  am  inclined  to  think  that  it  was  a  proper  sub- 
ject for  consideration,  and  might  be  regarded  as  a  part  of  the 
subject-matter  to  be  considered ;  and,  therefore,  upon  this 
ground  the  action  of  the  assessors  in  assessing  the  personal 
property  can  be  sustained. 

A  question  is  raised  by  the  relators'  counsel  as  to  the  right 
of  the  assessors  to  act  upon  the  ex  parte  affidavits,  and  it  is 
insisted  that  they  committed  an  error  in  assuming  to  do  so, 
and  in  using  them  in  the  absence  of  and  without  the  know- 
ledge of  the  relators. 

As  it  does  not  appear  from  the  return  that  the  assessors  did 
not  believe  the  sworn  statements  made  in  the  affidavits  of  the 
applicant  as  to  the  value  of  the  real  estate,  the  assessment  of 
the  same  at  the  value  fixed  must  depend  entirely  upon  all 
the  affidavits  which  actually  were  used  and  taken  into  con 


1871.]  OF  THE  STATE  OF  NEW  YORK.  HI 

People  ex  rel.  Am.  Linen  Thread  Co.  v.  Assessors  of  Vil.  of  Mechanicville. 


sideration  in  arriving  at  a  conclusion  as  to  the  amount  for 
which  the  real  estate  should  be  and  actually  was  assessed. 

The  return  states  that  the  assessors  had  before  them  and  in 
their  possession  at  the  time  of  the  hearing  and  at  the  time 
they  passed  upon  the  application  these  exparte  affidavits,  but 
the  attention  of  the  relators  was  not  called  to  the  fact  that 
they  were  then  present  for  use,  or  that  they  were  or  would 
be  used  upon  the  hearing.  The  affidavits  referred  to  had  pre- 
viously been  used  upon  a  special  motion  in  the  Supreme  Court 
between  the  same  parties ;  and  although  they  may  have  been 
in  possession  of  the  assessors  at  the  time,  it  nowhere  appears 
in  the  return  for  what  purpose  they  held  them,  or  that  they 
actually  were  used  by  the  assessors  at  all,  or  that  the  facts 
stated  in  them  were  considered,  in  any  way,  in  making  up 
their  final  determination  and  in  disposing  of  the  application.  « 
It  does  not  distinctly  appear  from  the  return  that  the  assessors 
held  or  regarded  these  affidavits  as  a  portion  of  the  evidence 
in  deciding  the  case.  There  are  no  distinct  rules  of  practice 
especially  established  for  the  hearing  of  applications  of  this 
character,  but  it  is  quite  obvious  that  it  would  have  been  but 
fair  and  eminently  proper  that  the  applicant  should  have  been 
advised  that  these  affidavits  were  a  portion  of  the  evidence, 
and  would  be  considered,  if  such  was  the  intention  of  the 
assessors.  They  were  acting  as  judicial  officers,  and  the  party 
claiming  to  be  aggrieved  had  a  right  to  know,  at  least,  what 
written  evidence  was  then  before  them  and  to  be  used  against 
the  applicant. 

Whether  there  was  legal  error  in  having  these  affidavits 
in  the  assessors'  possession  without  the  knowledge  of  or  notice 
to  the  applicant  is  not  important,  for  they  were  not  used,  if  the 
return  is  to  control.  And  without  passing  upon  the  question 
whether  the  assessors  could  lawfully  regard  affidavits  which 
were  not  openly  known  to  the  applicant,  I  am  of  the  opinion 
that  in  the  absence  of  anything  in  the  return  showing  that 
these  exparte  affidavits  were  actually  used  as  evidence  and 
taken  into  consideration  by  the  assessors,  they  cannot  now 
be  regarded  as  a  part  of  the  proceedings ;  that  the  affidavits 


112  CASES  IN  THE  SUPREME  COURT         [Nov., 

Mowers  v.  Fathers. 

produced  by  the  relator,  were  the  only  evidence  before  them  on 
the  subject  of  value  of  the  real  estate,  and  as  they  are  uncon 
tradicted,  the  value  must  stand  as  there  fixed.     There  was  no 
other  evidence  besides  these  affidavits,  and  under  the  deci- 
sions they  must  be  considered  controlling  and  conclusive. 

I  think  that  this  was  a  proper  case  for  a  certiorari,  and  that 
the  proceedings  are  properly  presented  to  the  consideration 
of  this  court. 

As  the  highest  valuation,  fixed  for  the  real  estate  by  the 
imcontradicted  evidence  is  $45,000,  the  assessors  should  be 
directed  to  correct  the  assessment  by  striking  out  $125,000 
assessed  for  real  estate,  and  inserting  $45,000  in  the  place 
thereof. 

DANIELS,  J.,  concurred ;  PARKER,  J.,  concurred  in  the 
result. 

Ordered  accordingly. 


PETER  MOWERS  and  JOHN  D.  EGGNOR  v.  DANIEL  FETIIERS. 
(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

Plaintiffs,  being  the  owners  of  a  stallion,  agreed  with  defendant,  an  inn- 
keeper, that  he  should  be  at  his  inn  for  a  certain  number  of  clays  in  each 
week,  during  a  certain  season,  in  charge  of  one  of  the  plaintiffs.  Plain- 
tiffs were  to  have  the  choice  of  one  of  two  stalls  in  the  wagon-house  of 
the  inn  for  his  accommodation.  The  price  of  oats  and  meal?  was  fixed 
at  a  lower  rate  than  customary,  but  there  was  no  agreement  as  to  the 
price  for  lodging,  hay  or  use  of  stall.  Pursuant  to  this  agreement,  one 
of  the  plaintiffs  took  the  horse  to  the  defendant's  inn,  and  lodged  and 
took  his  meals  there  on  the  days  agreed  upon,  kept  the  horse  in  a  stall 
provided,  under  his  own  lock  and  key,  and  took  care  of  him,  fed  and 
groomed  him,  and  the  wagon,  harness,  &c.,  of  plaintiffs  were  kept  in  the 
wagon-house. 

Held,  that  the  relation  of  innkeeper  and  guest  existed  between  plaintiffs  and 
defendant,  and  that  the  defendant  was,  therefore,  liable  to  plaintiffs  for 
loss,  by  accidental  fire  in  the  wagon-house,  of  the  horse,  wagon  and  other 
property  of  plaintiffs,  while  there  in  pursuance  of  such  agreement. 

Watftburn  v.  Jones  (14  Barb.,  193),  approved  and  followed. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  113 


Mowers  t>.  Fathers. 


EXCEPTIONS  ordered  to  be  first  heard  at  General  Term. 

The  action  was  brought  to  recover  damages  against  the 
defendant  as  an  innkeeper  for  the  loss  of  a  stallion,  &c.,  while 
one  of"  the  plaintiffs  was  stopping  at  the  defendant's  inn  in 
the  town  of  Sharon,  Schoharie  county.  The  cause  was  tried 
at  the  Schoharie  Circuit  in  April,  1868,  before  the  Hon. 
CHARLES  R.  INGALLS  and  a  jury.  The  facts,  so  far  as  mate- 
rial, are  stated  in  the  opinion. 

The  court  ruled  and  decided  that  the  plaintiffs  were  enti- 
tled to  recover  as  a  matter  of  a  law  on  the  proofs  given,  and 
the  defendant's  counsel  excepted. 

The  court  also  decided  that  the  relation  of  innkeeper  and 
guest  existed  between  the  defendant  and  the  plaintiffs  at  the 
time  of  the  loss,  and  that  the  plaintiffs  were  entitled  to  recover 
the  value  of  the  property,  to  which  rulings  exceptions  were  also 
taken. 

The  court  declined  to  rule  that,  under  the  agreement  and 
facts  proved  in  the  case,  the  plaintiffs  could  not  recover,  unless 
there  had  been  negligence,  &c. ;  or  that  the  plaintiff  was  not  a 
guest,  but  a  boarder ;  and  also  declined  to  submit  to  the  jury 
the  question  whether  the  plaintiff,  Eggnor,  was  at  the  inn 
under  the  peculiar  circumstances,  &c.,  claimed  by  the  defend- 
ant, and  to  charge  that  if  he  was,  the  relation  of  innkeeper  and 
guest  did  not  exist ;  and  to  submit  the  question  of  negligence, 
and  to  charge  that  if  none  had  been  shown,  that  the  plaintiff 
could  not  recover ;  and  to  submit  any  question  but  that  of 
value.  The  defendant  excepted  separately  to  each  of  the 
rulings. 

The  jury  found  the  value  of  the  property  lost  to  be  $615, 
and  the  defendants'  exceptions  were  ordered  to  be  first  heard 
at  the  General  Term  and  judgment  suspended. 

J.  K  Deicey^  for  the  defendant 
N.  C.  Moak,  for  the  plaintiff. 

Present — MILLER,  P.  J. ;  PARKER  and  DANIELS,  JJ. 
LANSING — VOL.  VL         15 


114  CASES  IN  THE  SUPREME  COURT          [Nov., 


Mowers  ».  Fethers. 


By  the  Court — MILLER,  P.  J.  It  appeared  upon  the  trial 
of  this  action  that,  in  the  spring  of  1865,  the  plaintiffs  were 
the  owners  of  a  stallion,  which,  by  an  arrangement  between 
them  and  the  defendant,  was  to  be  at  defendant's  hotel,  in 
charge  of  one  of  the  plaintiffs,  for  two  days  in  the  week 
during  the  season,  which  usually  commenced  on  the  first  day 
of  May  and  closed  about  the  fifth  day  of  July.  By  the 
agreement  between  the  parties  the  plaintiffs  were  to  have  the 
choice  of  the  box  stalls  in  the  wagon-house  adjoining  the 
barn.  The  price  of  meals  and  of  the  oats  were  fixed  at  less 
than  the  customary  rate  of  charges,  but  there  was  no  agree- 
ment as  to  the  price  for  lodging,  hay  or  for  the  use  of  the 
stall.  The  defendant  had  made  no  charge  for  the  bedding  of  the 
horse  or  the  use  of  the  stall,  but  it  does  not  distinctly  appear 
that  he  did  not  intend  to  charge  for  them.  The  plaintiff  Egg- 
nor  took  the  horse  to  the  defendant's  inn ;  lodged  and  took  his 
meals  at  the  inn  upon  the  days  agreed  upon  ;  kept  the  horse 
in  the  stall  provided,  under  lock  and  key  of  his  own ;  took 
care  of,  fed  and  groomed  him.  The  harness,  bridle,  whip  and 
wagon  were  kept  in  the  wagon-house,  sometimes  in  one  place 
and  sometimes  in  another. 

About  the  middle  of  June,  in  the  night  time,  the  barn  and 
wagon-house  were  discovered  to  be  in  flames,  and  the  fire  had 
made  such  progress  that  it  could  not  be  subdued.  They  were 
destroyed  by  the  fire,  together  with  the  horse,  wagon  and 
some  other  articles  belonging  to  the  plaintiffs. 

The  rule  is  well  settled  that  an  innkeeper  is  liable  as  an 
insurer  of  property  committed  to  his  custody  by  a  guest, 
unless  the  loss  be  due  to  the  culpable  negligence  or  fraud  of 
the  guest,  or  to  the  act  of  God  or  the  public  enemy,  and  that 
he  is  liable  for  the  horses  of  his  guest  when  accidentally 
burned.  (Hulet  v.  Swift,  33  N.  Y.,  571.) 

The  question  to  be  determined  in  this  case  is,  whether  the 
plaintiff  Eggnor,  at  the  time  the  horse  and  other  property 
were  destroyed,  was  at  the  defendant's  inn  as  a  guest.  I  am 
inclined  to  think  that  Eggnor  was  a  guest,  and  that  the  facts 
and  circumstances  do  not  show  that  he  was  merely  a  boarder, 


1871.]  OF  THE  STATE  OF  NEW  YORK.  115 


Mowers  t>.  Fethers. 


and  thus  the  defendant  was  exonerated  from  responsibility. 
Some  of  the  authorities  hold  that  where  there  is  a  stipulated 
contract  as  to  time,  price,  &c.,  the  party  is  a  boarder,  but 
when  he  is  at  the  inn  without  any  bargain  he  is  a  guest. 
(1  Par.  on  Con.,  628  ;  Thompson  v.  Lacy,  3  Barn.  &  Aid., 
283 ;  Parkharst  v.  Foster,  1  Salk.,  387 ;  Dausey  v.  Rich,  2 
Ellis  &  Bl.,  144;  King  v.  Ives,  7  C.  &  P.,  213;  Winter- 
mute  v.  Clark,  5  Sandf.,  247 ;  Cromwell  v.  Stevens,  3  Abb., 
N.  S.,  34 ;  Stewart  v.  McReady,  24  How.,  62 ;  Bennett  v. 
Ditson,  5  Term,  273  ;  Manning  v.  Wells,  9  Thomp.,  746.) 
A  careful  examination  of  the  cases  cited  evinces  that  the  con- 
tract was  entire,  covering  the  whole  case ;  while,  in  the  case 
at  bar,  the  agreement  only  embraced  a  portion  of  the  accom- 
modations to  be  furnished  by  the  defendant,  and  which  the 
plaintiff,  Eggnor,  actually  had.  The  meals  and  the  oats  only 
were  provided  for,  while  the  rest  remained  to  be  determined 
upon  a  mere  question  of  value.  It  was  not  enough  that  the 
price  for  the  meals  and  the  oats  was  agreed  upon,  for  fixing 
a  price  per  day  for  a  sojourner  at  an  inn  does  not  make  him 
a  boarder,  or  anything  but  a  guest.  (Pinkerton  v.  Wood- 
ward, 33  Cal.,  557;  Berkshire  Woolen  Co.  v.  Proctor,  1 
Cush.,  417 ;  Norcross  v.  Norcross,  53  Maine,  169 ;  Parker 
v.  Flint,  12  Mod.,  255.) 

Nor  does  the  fact  that  Eggnor,  one  of  the  plaintiffs,  was  to 
take  care  of  the  horse  make  him  any  the  less  a  guest.  In 
Seymour  v.  Cook  (53  Barb.,  451 ;  35  How.,  180),  the  guest 
led  the  horses  out  of  the  stable,  when  one  of  them  was  kicked 
and  injured,  aud  it  was  held  that  the  innkeeper  was  liable. 
The  same  principle  has  been  applied  to  actions  brought  against 
common  carriers  for  the  loss  of  or  injury  to  property.  (Mai- 
lory  v.  Tioga  JR.  R.  Co.,  39  Barb.,  488 ;  Mudgett  v.  Bay 
State,  1  Daly,  151 ;  Cayle  v.  Case,  8  Coke,  32,  33  a.) 

Nor  is  it  important  how  often  Eggnor  came  there,  or 
whether  he  came  regularly.  (Bac.  Ab.,  tit  Ins.  Co.,  5.)  The 
length  of  time  is  not  material.  (5  Tenn.,  273 ;  5  Barb.,  563  ; 
Allen  v.  Smith,  12  C.  B.  [N.  S.],  104;  Eng.  C.  L.,  630; 
Watting  v.  Potter,  9  Am.  L.  Keg.  [N.  S.],  618.)  The  pur- 


116  CASES  IN  THE  SUPREME  COURT        [Nov., 

The  National  Bank  of  Cheniung  v.  The  City  of  Elmira. 

pose  for  which  the  horse  was  used  is  also  of  no  consequence. 
(33  Oal.,  supra,  602 ;  7  Gush.,  supra,  423.) 

The  case  at  bar  is  similar,  in  most  of  its  leading  features, 
to  that  of  Washlurn  v.  Jones  (14  Barb.,  193),  where  it  was 
held  that  the  innkeeper  was  liable  for  an  injury  to  a  horse. 
It  is  true  no  price  was  agreed  upon  for  the  meals  or  the  oata, 
but  as  we  have  seen,  according  to  the  authorities,  this  makes 
no  difference  ;  I  think  the  case  last  cited  is  decisive  of  the  one 
now  considered,  and  directly  in  point. 

I  am  also  of  the  opinion  that  there  is  no  question  that  an 
innkeeper  is  liable  for  the  loss  of  this  kind  of  property  belong- 
ing to  a  guest,  as  is  held  in  some  of  the  cases  already  cited ; 
and  it  does  not  change  the  defendant's  liability  because  Egg- 
nor  furnished  his  own  lock  and  key  while  there,  any  mores 
than  it  would  if  the  guest  had  the  key  of  his  own  room,  or 
a  passenger  on  a  steamboat  the  key  of  his  own  state  room. 

There  is  no  question  as  to  the  admission  or  rejection  of 
evidence  in  the  case  which  requires  examination. 

The  judge  was  clearly  right  in  the  various  rulings  made  at 
the  close  of  the  evidence,  and  in  submitting  the  question  of 
damages  to  the  jury.  A  new  trial  is  denied,  and  judgment 
must  be  ordered  for  the  plaintiff  on  the  verdict,  with  costs. 


THE  NATIONAL  BANK  OF  CHEMUNG,  Respondent,  v.  THE  CITY 
OF  ELMIKA,  Appellant. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

To  render  an  assessment  roll  illegal  by  reason  of  defects  in  the  affidavit  of 
the  assessors  annexed  thereto,  the  defects  must  be  of  substance  and  not 
of  form  merely.  The  omission  of  words  not  essential  to  the  substance  of 
the  affidavit  prescribed  by  statute  is  not  a  fatal  defect. 

Nor  is  it  a  fatal  defect  if  the  affidavits  have  no  venue. 

Nor  if  the  affidavit  was  sworn  to  before  an  officer  different  from  the  one 
prescribed  by  the  statute,  but  duly  authorized  to  administer  oaths. 

Assessors  having  jurisdiction,  their  action  cannot  be  attacked  collaterally. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  117 

The  National  Bank  of  Chemung  v.  The  City  of  Elmira, 

Tins  action  is  brought  by  the  plaintiff,  a  banking  associa- 
tion, against  the  defendant  for  the  recovery  of  $4,006.80  with 
interest,  for  money  had  and  received  by  it  as  claimed,  or  for  a 
tort,  by  reason  of  the  alleged  wrongful  taking  thereof  by  the 
collector  of  taxes  for  the  city  of  Elmira,  in  April,  1869,  and 
the  alleged  payment  thereof  by  him  to  the  treasurer  of  said 
city,  and  the  refusal  of  the  city  to  pay  back  the  same  to  the 
plaintiff  upon  a  demand  being  made  therefor  of  the  mayor 
of  the  city. 

The  defence  made  thereto  by  the  defendant,  in  its  answer, 
consists  in  a  justification  of  the  taking  and  receipt  of  said 
money  by  said  collector  and  treasurer  under  an  assessment 
and  warrant  issued  for  the  collection  of  taxes. 

It  is  conceded  in  the  case,  and  found  as  fact  by  the  referee 
in  his  report,  that  the  assessors  of  said  city,  in  the  year  1868, 
made  an  assessment  of  the  real  and  personal  estate  therein, 
and  assessed  the  plaintiffs  upon  their  real  estate  at  the  valua- 
tion of  $5,000,  and  upon  their  personal  at  the  valuation  ol 
$95,000. 

That  the  personal  property  so  assessed  was  so  much  of  the 
capital  stock  of  the  bank,  which  was  invested  in  United 
States  government  bonds. 

That  such  assessors  made  their  assessment  roll,  which  was 
duly  delivered  and  filed  as  required  by  law,  showing  the 
assessment  aforesaid  against  said  plaintiff,  and  made  an  affida- 
vit thereto,  which  was  as  follows  : 

"  We,  the  undersigned,  do  severally  depose  and  swear  that 
we  have  set  down  in  the  foregoing  assessment  roll  all  the  real 
estate  situate  in  the  city  of  Elmira,  according  to  our  best 
information ;  and  that  with  the  exception  of  those  cases  in 
which  the  value  of  said  real  estate,  at  the  same  sums  which  a 
majority  of  the  assessors  have  decided  to  be  the  full  and  true 
value  thereof,  and  at  which  they  would  appraise  the  same  in 
payment  of  a  just  debt  due  from  a  solvent  debtor;  and  also 
that  the  said  assessment  roll  contains  a  true  statement  of  the 
aggregate  amount  of  personal  estate  of  each  and  every  person 
now  in  such  roll,  over  and  above  the  amounts  of  the  debts  due 


118  CASES  IN  THE  SUPREME  COURT         [Nov., 

The  National  Bank  of  Chemung  v.  The  City  of  Ehairu. 

from  such  person  respectively  and  exclusively,  such  stocks  as 
are  otherwise  taxable,  and  such  other  property  as  is  exempt 
by  law  from  taxation  at  the  full  value  thereof,  according  to 
our  best  judgment  and  belief. 


SQUIRE  NEWTON,  1  As8essors 
G.  H.  POST,  \  Assessors. 


Sworn  and  subscribed  before  me,  this  ) 
9th  day  of  September,  A.  D.  1868,     f 

C.  H.  BAKEK, 
Deputy  clerk  Chemung  county" 

That  the  common  council  duly  assessed,  imposed  and  levied 
a  general  tax  upon  said  property,  so  as  aforesaid  assessed,  in 
the  year  1868,  for  the  purposes  of  said  city,  amounting  to 
$84,457.50,  and  the  taxes  appearing  on  said  roll,  upon  the 
valuation  therein,  against  said  plaintiff  were  $2,080. 

That  a  certified  copy  of  said  assessment  roll,  with  the  war- 
rant of  said  city  annexed,  for  the  collection  of  said  taxes,  was 
duly  delivered  to  the  collector  of  the  city. 

That  said  plaintiff  did  not  appear  before  said  assessors,  to 
review  said  assessment,  or  make  any  objections  to  the  same, 
the  notice  for  that  purpose  having  been  duly  given  and 
published. 

That  the  warrant  so  issued  by  the  city  to  said  collector 
only  required  him  to  collect  from  said  plaintiff  and  pay  over 
to  said  treasurer  said  sum  of  $2,080,  including  his  fees 
thereon,  and  that  he  received  no  other  or  different  instructions 
from  said  city,  for  the  collection  of  said  taxes,  than  are  con- 
tained in  said  warrant. 

On  the  second  day  of  April,  1869,  said  warrant  having 
been  duly  renewed,  and  in  full  force  and  effect,  and  said  col- 
lector then  being  the  collector  of  taxes  for  county  and  State 
purposes,  as  well  as  for  said  city,  and  then  having  a  warrant 
in  his  hands  for  the  collection  of  the  taxes,  from  the  board  of 
supervisors  of  Chemung  county,  duly  levied  upon  and  sold 
by  virtue  of  both  of  said  warrants,  a  quantity  of  bank  bills 
and  treasury  notes  of  said  plaintiff,  amounting  in  value  to 


1871.]  OF  THE  STATE  OF  NEW  YORK.  119 

The  National  Bank  of  Chemung  «.  The  City  of  Elmira. 

the  sum  of  $4,006.80,  of  which  sum  he  paid  over  to  the 
treasurer  of  said  city,  for  the  use  thereof,  under  his  said  city 
warrant,  the  sum  of  $2,080,  and  the  balance  thereof  he  paid 
over  to  the  treasurer  of  the  county,  under  his  said  county 
warrant. 

The  president  of  the  bank  forbade  the  taking  and  sale  of 
the  bills,  and  said  sum  of  $4,006.80  was  thereafter  demanded 
of  the  city  and  it  refused  to  pay  the  same  to  plaintiff. 

As  conclusions  of  law  upon  these  facts,  the  referee  finds : 

That  the  assessors  had  jurisdiction  of  the  question 
whether  said  plaintiff  was  taxable  within  the  city,  and  liable 
to  be  assessed  therein  for  their  property  so  assessed  and 
valued,  and  whether  said  property  was  liable  to  taxation 
thereon. 

And  that  said  assessors,  in  holding  said  plaintiff  so 
liable  to  be  assessed  for  said  property,  and  that  said  property 
was  liable  to  taxation,  acted  judicially,  and  their  decision 
cannot  be  reviewed  or  called  in  question  in  this  action. 

That  the  affidavit  made  by  the  assessors,  written  upon 
the  assessment  roll,  was  not  such  an  affidavit  or  oath  as  is 
required  by  the  statute,  and  was  not  sufficient  in  law  to  give 
the  defendant  jurisdiction  to  issue  the  warrant  for  the  collec- 
tion of  said  taxes,  and  that  by  the  issuing  of  said  warrant, 
and  the  proceedings  thereupon  had,  said  defendant  was  guilty 
of  a  wrongful  taking  of  said  bank  bills,  and  that  by  reason 
thereof  the  plaintiff  is  entitled  to  recover  of  the  defendant 
the  value  of  the  whole  of  said  bank  bills  and  treasury  notes, 
to  wit,  $4,006.80,  witli  interest,  and  that  judgment  should 
be  entered  accordingly.  To  which  several  findings  the 
defendant  duly  made  and  filed  exceptions. 

The  defendant,  on  the  trial,  offered  in  evidence  a  new  or 
supplemental  affidavit  of  said  assessors,  to  said  assessment,  in 
due  form,  and  made  before  the  proper  officer,  of  date  May 
2d,  1870,  which  was  objected  to  by  plaintiff,  and  the  referee 
refused  to  receive  the  same,  to  which  refusal  the  defendant 
excepted. 

Judgment  was  entered  on  said  report,  and  in  accordance 


120  CASES  IN  THE  SUPREME  COURT         [Nov., 

The  National  Bank  of  Chemung  v.  The  City  of  Elmira, 

therewith,    October    27,  1870,   for   $4,570.60,  from    which 
the  defendant  appeals. 

S.  B.  Tomlinson,  for  the  appellant  and  defendant. 

E.  H.  Benn,  for  the  respondent  and  plaintiff. 
\ 

Present — MILLER,  P.  J. ;  PARKER  and  DANIELS,  JJ. 

By  the  Court — MILLER,  P.  J.  The  right  of  the  plaintiff  to 
recover  in  this  action  was  placed  by  the  referee  npon  the  ground 
that  the  affidavit  or  instrument  written  upon  the  assessment 
roll  was  not  such  an  affidavit  or  oath  as  was  required  by  the 
statute,  and  was  not  sufficient  to  give  jurisdiction  to  issue  the 
warrant.  There  are  several  omissions  in  the  affidavit  annexed, 
which  are  supposed  to  be  fatal  to  the  validity  of  the  warrant 
under  which  the  plaintiff's  property  was  seized.  The 
statute  (see  Laws  1851,  p.  334,  §  8)  prescribes  the  form  of 
the  affidavit  to  be  made  and  subscribed  by  the  assessors,  and 
provides  that  they  shall  depose  and  swear  that  they  have  set 
down  all  the  real  estate  according  to  their  best  information, 
"  and  that,  with  the  exception  of  those  cases  in  which  the 
value  of  the  said  real  estate  (has  been  changed  by  reason  of 
proof  produced  before  us,  we  have  estimated  the  value  of  the 
said  real  estate)  at  the  sums  which  a  majority  of  the  assessors 
have  decided  to  be  the  full  and  true  value  thereof,"  &c. 
*  *  *  "And,  also,  that  the  said  assessment  roll  contains 
a  true  statement  of  the  aggregate  amount  of  (the  taxable) 
personal  estate  of  each  and  every  person  (named)  in  such 
roll,"  *  *  "at  the  full  (and  true)  value  thereof,  accord- 
ing to  our  best  information  and  belief." 

The  words  omitted  in  the  affidavit  to  the  assessment  roll 
are  contained  in  brackets,  and  the  main  question  to  be  deter- 
mined is,  how  far  their  omission  affects  the  validity  of  the 
warrant. 

The  omission,  in  order  to  affect  the  legality  of  the  assess- 
ment roll,  must  be  one  of  substance  and  not  of  form  merely. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  121 

The  National  Bank  of  Chemung  «.  The  City  of  Elmira. 

In  Van  Rensselaer  v.  Whitbeck  (7  N.  Y.,  517),  it  was  held 
that  when  a  statute  prescribes  the  form  of  a  certificate  to  be 
signed  by  the  assessors  and  attached  to  their  assessment  roll, 
a  substantial  compliance  with  its  terms  is  necessary  to  give 
jurisdiction  to  the  board  of  supervisors  to  impose  a  tax  and 
issue  their  warrant  to  the  collector  thereon.  In  the  case 
cited,  the  statute  was  entirely  disregarded,  and  the  assessors 
certified  that  they  had  set  down  the  real  estate  at  the  sums 
which  a  majority  of  the  assessors  "have  decided  to  be 
proper,"  and  that  the  assessment  roll  contained  a  true  state- 
ment of  the  aggregate  amount  of  the  taxable  personal  estate, 
&c.,  "  according  to  the  usual  way  of  assessing."  The  assessors 
entirely  d-sregarded  the  law  in  force  at  that  time  (1  R.  S., 
394,  §  27),  which  required  that  they  should  certify  that  they 
had  estimated  the  real  estate  at  the  sums  which  they  had 
decided  to  be  "  the  true  value  thereof,"  and  the  personal 
estate  according  to  their  "  information  and  belief." 

In  Parish  v.  Golden  (35  N.  Y.,  467)  it  was  held  that  the 
omission  of  the  assessors  to  specify  or  make  an  affidavit  as  to 
some  particulars  required  of  them  in  relation  to  the  assess- 
ment was  not  a  jnrisdictional  defect.  In  the  last  case  cited, 
the  words  omitted  were  "and  such  other  property  as  is 
exempt  by  law  from  taxation,"  and  they  were  held  to  be 
immaterial.  The  learned  judge  who  wrote  the  opinion,  after 
discussing  the  question  whether  the  omission  was  material, 
says :  "  But  if  it  is  a  material  statement,  the  omission  of  it 
ought  not  to  be  regarded  as  fatal  to  the  assessment  roll.  Its 
omission  is  not  evidence  that  the  assessors  have  not  performed 
their  duty  in  making  the  valuations."  *  *  *  "And  I 
am  of  the  opinion  that  the  duty  of  verifying  the  assessment 
is  to  be  regarded  as  directory,  rather  than  jurisdictional."  If 
the  statute  is  merely  directory,  as  here  laid  down,  then,  of 
course,  the  omissions  are  of  no  importance  whatever  they 
may  be.  With  the  authority  of  Van  Rensselaer  v.  Whitbeck, 
still  existing,  I  am  not  prepared  to  hold  that  a  material  omis- 
sion in  the  affidavit  which  affects  the  substance  is  not  a  juris- 
dictional defect.  The  question  then  arises  whether  the 

LANSING — VOL.  VI.         16 


122  CASES  IX  THE  SUPREME  COURT          [Nor 

The  National  Bank  of  Chemung  v.  The  City  of  Elmira. 

omissions  referred  to  are  material.  The  first  omission,  I 
think,  is  not  important,  as,  without  the  words  left  out,  it 
would  appear  that  the  assessors  had  set  down  the  real  estate 
at  sums  which  a  majority  of  the  assessors  "have  decided  to 
be  the  full  and  true  value  thereof."  This  is  equivalent  to 
saying  that  they  have  "  estimated  the  value  of  the  real  estate." 
The  omission  of  the  words  relating  to  changes  made  "  by 
reason  of  proof,"  &c.,  renders  the  sentence  imperfect,  but  is 
entirely  clerical.  It  is  difficult  to  see  how  any  taxpayer  can 
be  injuriously  affected  by  leaving  out  these  words  and  placing 
a  reasonable  interpretation  upon  the  language  employed,  and 
having  the  statute  in  view,  it  is  fairly  to  be  inferred  what 
actually  was  intended.  It  may  be  the  case  that  the  value  of 
no  real  estate  was  changed  by  proof,  and  then  these  words 
might  properly  be  omitted.  None  of  the  other  defects  are  of 
any  consequence  except  the  words,  "  the  taxable,"  as  they  do 
not  add  to  or  in  any  way  change  the  meaning  or  import 
of  the  affidavit.  As  to  these  last-named  words,  a  question 
arises  which  is  not  entirely  free  from  embarrassment.  At 
first  view  their  omission  appears  to  make  the  affidavit 
read  so  as  to  include  all  property,  whether  taxable  or  other- 
wise, thus  embracing  government  securities  and  other  per- 
sonal property,  which  the  law  exempts  from  taxation,  in 
direct  violation  of  the  statute.  But  I  am  inclined  to  think 
that  the  clause,  which  is  as  follows,  "  and  exclusively  of 
(which  indirectly  means  excluding)  such  stocks  as  are  oth- 
erwise taxable,  and  such  other  property  as  is  exempt  by  law 
from  taxation,"  virtually  and  in  fact  saves  the  omission,  and 
renders  the  meaning  perfect  and  complete.  It  thus  reads 
that  the  roll  contains  a  statement  of  all  personal  property, 
except  such  as  is  exempt,  which,  I  think,  must  be  interpreted 
as  including  all  "  taxable  "  personal  property.  If  this  con- 
struction is  correct,  then  there  was  no  substantial  defect  in  the 
affidavit,  and  the  statute  was  complied  with  in  all  essential 
particulars. 

I  think,  also,  that  the  want  of  a  venue  to  the  affidavit  ia 
not  material.     The  necessity  of  a  venue  is  more   strictly 


1871.]  OF  THE  STATE  OF  NEW  YORK.  123 

The  National  Bank  of  Chemung  t.  The  City  of  Elmira. 

applicable  to  affidavits  in  judicial  proceedings,  and  not  to  mere 
oaths  like  the  one  annexed  to  the  assessment  roll  in  this  case. 
The  authorities  cited  by  the  plaintiff,  therefore,  have  no  appli- 
cation. It  is  to  be  assumed  that  the  assessment  roll  had  a 
proper  statement  at  the  beginning;  that  it  was  a  list  of  the 
taxable  inhabitants  of  the  city  and  county  where  it  was  made 
up.  This  was  sufficient  if  a  venue  was  necessary.  Besides, 
the  omission,  at  most,  was  a  mere  irregularity,  which  is  not 
jurisdictional,  and  could  be  the  subject  of  review  upon  certio- 
rari  only.  In  The  People  ex  rel.  Beadle  et  al.  v.  The 
Assessors  of  Elmira,  it  was  held  to  be  a  mere  irregularity. 
(See  MSS.  opinion.)  Nor  do  I  think  that  it  is  a  fatal  defect, 
because  the  affidavit  was  sworn  to  before  the  deputy  clerk  of 
Chemung  county.  The  statute  which  provides  that  the 
assessors  shall  appear  before  one  of  the  justices  of  the  peace 
of  the  town  or  city,  and  make  and  subscribe  the  oath  (S.  L. 
of  1851,  chap.  176,  §  8),  does  not  prohibit  the  affidavit  being 
taken  before  some  other  competent  officer.  I  do  not  think 
the  statute  is  peremptory  and  absolutely  requires  the  oath  to 
be  taken  before  the  officers  named,  but  simply  directory. 

In  The  People  v.  The  Supervisors  of  Ulster  (34  N.  Y., 
272),  it  is  said :  "  Where  the  statute  directs  an  act  to  be 
done  in  a  certain  way,  or  at  a  certain  time,  and  a  strict  com- 
pliance as  to  time  and  form  does  not  appear  to  the  judicial 
mind  to  be  essential,  the  proceedings  are  held  valid,  although 
the  command  of  the  statute  has  been  disregarded.  The 
statute  is  then  said  to  be  directory."  This  court  has  also 
decided,  in  Beadle  v.  The  Assessors  (supra)  that,  although 
the  statute  specified  that  the  oath  should  be  made  before  a 
justice  of  the  peace,  yet  it  might  be  made  before  the  city 
clerk,  who  had  the  same  power  to  administer  oaths  as 
justices. 

It  is  insisted  by  the  plaintiff's  counsel  that  the  assessment 
of  the  capital  stock  of  the  bank  was  illegal,  unauthorized  and 
void  under  the  act  of  1866  (chap.  761),  which  provides  that 
"no  tax  shall  hereafter  be  assessed  upon  the  capital  of 
any  bank  or  banking  association  organized  under  the  autho 


124         CASES  IN  THE  SUPREME  COURT    [Nov.,  1871.] 
The  National  Bank  of  Chemung  v.  The  City  of  Elmira. 

rity  of  this  State  or  of  the  United  States."  The  referee,  upon 
the  trial,  held  that  the  assessors  had  jurisdiction  of  the  ques- 
tion whether  the  plaintiff  was  liable  to  be  assessed,  and 
whether  the  property  was  liable  to  taxation  within  said  city, 
and  that  they  acted  judicially,  and  their  decision  cannot  be 
reviewed  or  called  in  question  in  this  action. 

The  referee  was  clearly  right  in  this  view  of  the  subject. 
In  The  Genesee  Vol.  Nat.  Bank  v.  The  Board  of  Supervisors 
of  Livingston  County  (53  Barb.,  223),  an  action  was  brought 
to  recover  money  paid  for  taxes,  and  it  was  held  that  the 
assessors  having  jurisdiction  of  the  bank  and  of  the  subject- 
matter,  that  in  assessing  the  plaintiff  to  the  full  amount  of  its 
capital  they  acted  within  their  jurisdiction  ;  and  if  they  erred, 
the  error  was  a  judicial  one,  which  could  be  reviewed  upon 
certiorari,  but  clearly  could  not  be  reviewed  in  a  collateral 
preceding.  This  case  is  directly  in  point,  and  I  think  con- 
trolling. The  same  doctrine  has  been  frequently  held  in  the 
courts  of  this  State.  (See  Chegary  v.  Jenkins,  5  N.  Y.,  376 ; 
Barhyte  v.  Shepherd,  35  K  Y.,  238 ;  Swift  v.  The  City  of 
Pouglikeepsie,  37  id.,  511 ;  Bank  of  Commonwealth  v.'  Mayor 
of  N.  Y.,  43  id.,  184.) 

The  statute  relied  upon  was  intended  to  add  another  to  the 
class  of  exemptions  already  existing  and  within  the  jurisdic- 
tion of  the  assessors  to  determine.  (See  37  N.  Y.,  513.)  The 
assessors  having  jurisdiction  and  having  acted  judicially,  the 
assessment  imports  absolute  verity,  and  the  remedy  of  the 
plaintiff  was  to  bring  a  certiorari  to  correct  the  errors  com- 
plained of,  and  not  by  action  against  the  defendant  to  recover 
back  the  taxes  actually  paid. 

The  referee  was  clearly  wrong,  and  the  judgment  appealed 
from  must  be  reversed;  and  as  a  new  trial  cannot  change  the 
case,  I  think  judgment  should  be  ordered  in  favor  of  the 
defendant,  with  costs. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  125 

Porter  i.  Knapp. 

OLIVER  PORTER,  Respondent,  v.  NATHAN  KNAPP,  Appellant. 
(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

It  is  admissible,  as  a  defence  to  an  action  on  a  note,  to  show  that  it  wan 
given  for  the  loan  of  moneys  obtained  on  a  sale  of  stolen  government 
bonds. 

Proof  of  this  defence  casts  upon  the  holder  the  onus  of  showing  himself  a 
bonaflde  owner. 

APPEAL  from  judgment  entered  on  verdict  in  favor  of  the 
plaintiff. 

The  case  was  tried  at  the  Cortland  County  Circuit  in  April, 
1870,  before  one  of  the  justices  of  this  court  and  a  jury. 

The  action  was  brought  upon  a  promissory  note  dated  Sep- 
tember 27,  1869,  made  by  the  defendant  for  the  sum  of  $150, 
payable  to  William  E.  Warner  or  bearer  on  the  first  day  of 
April,  1870,  with  interest.  It  was  claimed  that  the  note  had 
never  been  transferred  to  the  plaintiff  by  Warner,  but 
belonged  to  one  Elizabeth  S.  Newton.  The  defendant 
also  interposed  as  a  defence  that  the  note  had  been  given 
for  money  which  was  received  as  part  of  the  proceeds  of 
bonds  to  the  amount  of  $14,000,  which  were  stolen  from 
Elizabeth  S.  Newton,  and  offered  to  prove  the  defence  as 
set  up  in  one  of  the  answers  and  particularly  stated  in  the 
opinion,  which  offer  was  rejected  by  the  court  and  an  excep- 
tion taken  to  the  ruling.  Some  other  exceptions  were  taken, 
but  they  are  not  material  to  the  disposition  of  the  case. 

The  case  was  submitted  to  the  jury  upon  the  single  ques- 
tion whether  the  note  was  transferred  to  the  plaintiff  for  a 
sufficient  consideration.  Upon  this  question  there  was  con- 
siderable conflicting  evidence.  The  jury  found  in  favor 
of  the  plaintiff  for  the  amount  of  the  note  and  interest.  A 
bill  of  exceptions  was  made  and  settled,  judgment  entered 
upon  the  verdict,  and  the  defendant  appealed. 


126  CASES  IN  THE  SUPREME  COURT       [March, 

Porter  v.  Knapp. 

M.  M.  Waters,  for  the  appellant. 
C.  Porter,  for  the  respondent. 

Present — MILLER,  P.  J. ;  POTTER  and  BALCOM,  JJ. 

By  the  Court — MILLER,  P.  J.  This  action  was  brought  tc 
recover  the  amount  of  a  promissory  note  which  the  plaintiff 
claimed  to  hold  as  a  bona  fide  holder,  which  the  testimony 
shows  was  transferred  to  the  plaintiff  for  services  as  an  attor 
ney  in  the  defence  of  William  E.  Warner,  who  was  at  the 
time  of  the  transfer  charged  with,  and  subsequently  indicted 
for,  a  criminal  offence.  The  services  were  performed  mainly, 
if  not  entirely,  after  the  transfer  of  the  note,  which  was  made 
on  the  20th  of  January,  1870. 

Upon  the  trial  of  the  action,  after  the  plaintiff  had  rested, 
the  defendant  offered  to  prove  the  facts  set  forth  in  the  fourth 
division  of  his  answer,  which  avers  that  Elizabeth  S.  Newton 
was  the  owner  and  holder  of  United  States  bonds  of  great 
value ;  that  the  same  were  stolen  from  her  and  sold ;  that  a 
portion  of  the  avails  of  said  bonds  so  sold  came  to  the  posses- 
sion of  the  payee  of  said  note,  William  E.  Warner,  and  that 
the  note  was  given  for  a  portion  of  said  money  loaned  by 
the  payee  in  said  note  to  the  defendant;  that  the  payee 
fraudulently  concealed  the  fact  from  the  defendant  that  the 
moneys  so  loaned  were  the  avails  of  said  stolen  bonds,  and 
fraudulently  induced  the  defendant  to  believe  that  the  money 
belonged  to  the  payee ;  and  relying  upon  this,  he  was  induced 
to  give  the  note  in  question ;  that  after  the  making  of  the 
note  in  suit,  the  defendant  was  notified  by  Elizabeth  S.  New- 
ton of  the  facts  aforesaid,  and  forbidden  to  pay  the  same  to 
the  said  Warner;  and  that  the  said  Elizabeth  S.  Newton,  also, 
before  the  commencement  of  this  action,  commenced  an  action 
in  the  Supreme  Court  against  the  plaintiff  in  this  action  and 
others ;  and  in  that  action  obtained  an  injunction,  forbidding 
the  plaintiff  in  this  action  from  collecting,  selling  or  trans- 
ferring the  note  sued  on  in  this  action,  and  notified  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  127 

Porter  t>.  Enapp. 

defendant  of  the  ownership  of  the  note  and  of  the  proceed- 
ings in  the  action. 

As  the  case  stood  at  the  close  of  the  plaintiff's  testimony, 
the  evidence  showed  prima  facie  that  he  was  a  bona  fide 
holder  of  the  note  in  question,  and  as  snch  entitled  to  recover. 
I  think  the  proof  that  the  money  for  which  the  note  was 
given  was  stolen,  would  cast  upon  the  plaintiff  the  burden 
of  establishing  that  he  actually  was  a  bona  fide  holder,  inde- 
pendently of  the  presumption  arising  from  the  fact  that  he 
had  the  note  in  his  possession. 

In  The  First  National  Bank  of  Cortland  v.  Green  (43  N". 
Y.,  298),  it  was  held  that  a  party  suing  upon  a  negotiable 
note  purchased  before  maturity,  is  presumed,  in  the  first 
instance,  to  be  a  bona  fide  holder.  But  where  the  maker  has 
ehown  that  this  note  was  obtained  from  him  under  duress,  or 
that  he  was  defrauded  of  it,  the  plaintiff  will  then  be  required 
to  show  nnder  what  circumstances  and  for  what  value  he 
became  the  holder. 

The  reason  for  this  rule  is  said  to  be  that,  "  where  there  is 
fraud  the  presumption  is  that  he  who  is  guilty  will  part  with 
the  note  for  the  purpose  of  enabling  some  third  party  to 
recover  upon  it ;  and  such  presumption  operates  against  the 
holder,  and  it  devolves  upon  him  to  show  that  he  gave  value 
for  it." 

Now,  applying  this  principle  to  the  case  at  bar,  it  would 
appear,  upon  the  proof  of  fraud  being  given,  that  the  plaintiff 
held  a  note  which  had  been  given  for  the  avails  of  stolen  pro- 
perty, without  any  evidence  as  to  the  manner  in  which  it 
came  into  his  hands,  or  that  he  paid  value  for  it ;  and  under 
such  circumstances  1  think  he  would  be  called  upon  to  show 
how  he  came  into  the  possession  of  the  note.  It  seems  to  me 
it  would  be,  at  least,  a  reasonable  ground  for  a  presumption 
that  he  had  paid  no  value,  inasmuch  as  it  was  given  for  pro- 
perty feloniously  obtained,  which  we  have  held  in  Maston  v. 
Porter  *  at  this  term,  could  be  pursued  and  taken  wherever  it 

*  Reported  ,5  Lansing,  416. 


Ludlow  t>.  The  Hudson  River  Railroad  Co. 


might  be  found,  and  the  avails  appropriated  by  the  actual 
owner. 

It  follows  that  the  court  erred  in  excluding  the  evidence 
offered. 

Other  questions  are  raised  by  the  defendant's  counsel,  but 
they  were  not,  I  think,  sufficiently  presented  to  the  court 
upon  the  trial,  and,  therefore,  are  not  available.  But  this  is 
not  important,  as  for  the  errors  stated,  the  judgment  must 
be  reversed  and  a  new  trial  granted,  with  costs  to  abide  the 
event. 

Judgment  reversed. 


ELIZABETH  LUDLOW,  Appellant,  v.  THE  HUDSON  BIVEK  RAIL- 
ROAD COMPANY,  Respondent. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

A  conveyance  of  land  to  a  railroad  company,  "  for  the  uses  and  purposes 
of  said  railroad,  and  for  no  other  or  different  purpose,"  described  two 
parcels ;  the  description  of  the  second  commencing  "  together  with  a 
piece  for  materials  of  five  hundred  and  thirty  feet  in  length,  &c."  A 
map  was  annexed  to  the  deed  and  referred  to  in  the  description,  on 
which  such  second  parcei  was  laid  clown  and  designated  "for  materials." 

Held,  that  these  words  did  not  exempt  the  company  from  liability  to 
the  grantor  for  damages  caused  by  his  negligently  digging  away  a  part 
of  such  secondly  described  lot,  so  as  to  cause  his  adjoining  land  to  fall 
in,  and  seriously  to  impair  its  value. 

The  cause  of  action  for  damage  did  not  accrue  until  the  caving  away 
of  the  land  took  place,  from  which  the  injuries  resulted. 

APPEAL  from  judgment  entered  upon  dismissal  of  com- 
plaint at  Columbia  County  Circuit  in  October,  1870. 

The  action  was  brought  in  March,  1866,  to  recover  damages 
occasioned  to  the  land  of  the  plaintiff,  by  reason  of  its 
sliding  down  and  caving  in,  on  account  of  the  excavation  and 
removal  of  earth  by  the  defendant. 

For  a  long  time  prior  to  the  construction  of  the  defend 
ant's  railroad  the  plaintiff  was  the  owner  of  a  farm  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  129 

Ludlow  0.  The  Hudson  River  Railroad  Co. 

about  190  acres,  situated  on  the  east  bank  of  the  Hudson 
river,  in  the  town  of  Germantown ;  and  ever  since  then  had 
owned  and  occupied  it.  The  portion  of  the  farm  lying 
on  the  bank  of  the  river  extended  down  a  slope  to  the 
river,  and  depended  upon  the  bank  and  earth  on  the  side  and 
slope  of  the  bank  for  its  natural  support. 

On  the  14th  of  February,  1851,  the  plaintiff  and  her  hds- 
band,  in  consideration  of  $250,  conveyed  by  deed  to  the 
defendant  a  portion,  about  two  acres,  of  the  farm. 

The  deed  covers  two  parcels,  and  the  description  of  the 
second  parcel  begins  as  follows :  "  Together  with  a  piece  for 
materials  of  530  feet  in  length,  &c." 

A  map,  annexed  to  the  deed,  is  referred  to  in  the  descrip- 
tion; and  upon  this  map  the  second  parcel  is  laid  down  and 
designated  "for  materials" 

In  the  haoendum  clause  the  use  to  which  the  grantees  may 
put  the  premises  conveyed  is  expressed  and  limited  thus : 
"  For  the  uses  and  purposes  of  said  railroad,  and  for  no 
other  or  different  purpose" 

In  1851  the  defendant  entered  upon  the  land  excavated, 
and  removed  earth  from  the  second  piece  of  land  described 
in  the  deed,  and  used  the  same  in  building  the  embankment 
of  its  road.  The  excavation  made  was  to  the  depth  of  twenty- 
five  or  thirty  feet.  It  was  left  in  that  condition  until  the 
spring  of  1864,  when  a  slide  occurred  where  the  excavation 
had  been  made,  and  about  three  acres  and  a  half  of  plaintiff's 
land  slid  down.  There  was  evidence  to  show  that  the  value 
of  the  land  remaining  was  thereby  seriously  impaired,  and 
that  the  effect  of  excavations  of  this  character  in  such  mate- 
rial was  to  render  it  liable  to  slide.  It  was  also  proved  that 
there  was  a  way  to  protect  the  land  against  slides  in  such 
cases. 

At  the  close  of  the  plaintiff's  testimony  the  defendants' 
counsel  moved  to  dismiss  the  complaint  upon  the  ground : 
1st.  That  the  plaintiff  and  her  husband,  by  a  full  warranty 
deed,  dated  February  14th,  1851,  sold  and  conveyed  to  the 
defendants  the  said  lot  or  parcel  of  land  on  which  the  exca- 

LANSING — VOL.  VI.        If 


130  CASES  IN  THE  SUPREME  COURT       [March 

Ludlow  v.  The  Hudson  River  Railroad  Co. 

vation  was  made  for  material ;  and  that  said  grant  autho- 
rized the  defendants  to  take  the  material  contained  within 
the  lines  granted,  without  in  any  manner  binding  the  defend- 
ants to  protect  the  embankment  against  a  slide.  2d.  That  it 
is  not  in  evidence  that  there  was  any  negligence  on  the  part 
of  the  defendants,  or  that  the  work  was  not  done  in  a  skill- 
ful and  careful  manner.  3d.  That  the  action  is  barred  by  the 
statute  of  limitations,  so  far  as  any  injury  by  defendant  has 
application,  as  it  occurred  more  than  six  years  before  the 
commencement  of  this  action,  the  right  of  action  only  exist- 
ing at  the  time  that  the  digging  was  done. 

The  plain  tiff's  counsel  also  claimed  the  right  to  go  to  the 
jury  upon  all  the  questions  of  fact  in  the  case,  and  especially 
upon  the  question  of  negligence  as  one. 

The  court  denied  the  right  claimed  by  plaintiff 's  counsel, 
and  refused  to  submit  the  question  of  fact  to  the  jury.  To 
which  denial  and  refusal  the  plaintiff's  counsel  then  and 
there  duly  excepted. 

The  court  granted  defendants'  motion  to  dismiss  the  plain- 
tiff's  complaint.  To  which  decision  the  plaintiff's  counsel 
then  and  there  duly  excepted. 

A  judgment  was  entered  in  favor  of  the  defendant,  and 
the  plaintiff  appealed. 

J.  C.  Newikirk,  for  appellant  and  plaintiff. 
Frederick  Loomis,  for  respondent  and  defendant. 
Present — MILLER,  P.  J. ;  POTTER  and  BALCOM,  JJ. 

By  the  Court — MILLER,  P.  J.  The  deed  from  the  plaintiff 
and  her  husband  to  the  defendant,  conveyed  the  land  therein 
described,  including  a  "  piece  for  materials  "  in  fee,  and  the 
premises  thus  conveyed  were  to  be  used  for  the  purposes  of 
the  railroad,  as  provided  in  the  habendum  clause,  with  no 
special  provision  as  to  the  removal  of  the  soil. 

As  a  general  rule,  each  of  the  owners  of  adjoining  lands 


1872.1  OF  THE  STATE  OF  NEW  YORK.  131 

Ludlow  ».  The  Hudson  River  Railroad  Co. 

is  entitled  to  the  natural  support  to  his  land  of  the  adjoining 
land,  and  neither  has  the  right  to  withdraw  this  natural  sup- 
port of  the  soil.  If  one  of  the  owners  excavates  and  removes 
the  soil,  and  thereby  removes  the  natural  support  of  his 
neighbor's  land,  so  that  it  cannot  stand  by  its  coherence,  and 
it  subsides  and  falls,  thus  disturbing  his  neighbor  in  the 
enjoyment  and  possession  of  his  property,  the  law  will  hold 
the  wrong-doer  answerable  for  such  consequences,  provided 
his  neighbor  has  done  nothing  with  his  own  land  contributing 
to  produce  the  injury,  and  in  hostility  to  the  legitimate  and 
proper  exercise  of  the  other's  paramount  right  to  improve 
his  own  premises.  (Farrand  v.  Marshall,  19  Barb.,  380; 
21  id.,  409 ;  see  also,  Robinson  v.  IV.  Y.  &  Erie  JR.  R.  Co., 
27  Barb.,  542,  522,  523;  Lasala,  v.  Holbrook,  4  Paige,  169.) 
In  such  cases  the  defendant  is  liable  for  damages,  inde- 
pendently of  the  question  of  negligence  or  unskillfulness. 
(27  Barb.,  523,  supra.)  Having  in  view  the  principle  laid 
•down,  the  defendant  is  liable  unless  the  deed  under  which  it 
•claims  exonerates  the  defendant  from  responsibility.  The 
parcel  of  land  upon  which  the  excavation  was  made  was  con- 
veyed by  a  separate  description  and  •"  for  materials."  It  was 
evidently  intended  that  the  defendant  should  use  the  soil  upon 
it  for  the  purposes  of  the  railroad  in  the  limit  of  its  bounda- 
ries, but  it  is  not  a  reasonable  construction  of  its  import  to 
claim  that  it  was  designed  to  be  used  to  an  extent  that  would 
destroy  and  injure  the  land  of  the  adjoining  owner.  If  this 
is  a  fair  intendment,  then  it  would  confer  a  right  to  excavate 
and  remove  the  soil  within  its  limits  upon  a  perpendicular 
line,  so  as  to  cause  the  caving  in  of  the  plaintiff's  land,  to  a 
far  greater  extent  than  actually  did  occur,  and  perhaps  an 
incalculable  amount  of  injury.  Neither  party  could  have 
intended  any  such  result,  and  the  deed  itself  does  not  authorize 
any  act  which  would  necessarily  produce  it.  Even  if  it  be 
conceded  that  it  was  executed  for  a  specific  purpose,  it  clearly 
was  not  contemplated  that  the  plaintiff  was  to  be  injured  by 
any  excavation  which  the  defendant  might  have  occasion  tc 
make  without  restriction  or  limitation.  The  words  "foi 


132  CASES  IN  THE  SUPREME  COURT       [March, 

Ludlow  f .  The  Hudson  River  Railroad  Co. 

materials  "  were  merely  a  matter  of  description,  as  distinctive 
from  the  parcel  of  land  just  described,  which  was  for  the  road 
bed  or  track,  and  conferred  no  right  which  relieved  the  defend- 
ant from  the  obligations  incurred  as  the  owner  of  the  fee. 
Had  the  parties  designed  that  the  deed  should  convey  any 
more  than  the  fee  of  the  premises  and  confer  any  unusual  or 
extraordinary  rights,  it  should  have  contained  a  covenant  to 
that  effect ;  and  in  the  absence  of  any  such  express  provision, 
the  conveyance  must  be  considered  as  granting  merely  an 
estate  in  fee  of  the  premises,  with  the  restriction  provided  for 
and  subject  to  the  same  rules  of  construction  as  any  other 
conveyance  of  a  similar  character. 

Upon  no  ground,  I  think,  can  it  be  fairly  claimed  that 
either  party  had  in  contemplation  any  such  contingency 
as  the  destruction  or'  sliding  away  of  the  plaintiff's  land. 
This  was  not  one  of  the  consequences  necessarily  and 
naturally  resulting  from  the  proper  use  of  the  land  for 
the  purposes  indicated,  and  the  circumstances  and  facts 
existing  do  not  present  a  case  in  any  way  analogous  to 
Rood  v.  N.  T.  &  E.  R.  R.  Co.  (18  Barb.,  80),  which  is  cited 
by  the  defendant's  counsel,  where  it  was  held  that  when  the 
owner  of  land  conveyed  a  strip  to  a  railroad  company  for  its 
track,  and  received  a  large  consideration,  that  it  might  fairly 
be  presumed  that,  in  making  such  conveyance,  the  grantor 
must  have  contemplated  the  risk  of  injury  to  the  remaining 
lands  by  fire  from  engines  running  on  the  road.  In  the  case 
cited,  the  risk  was  such  as  might  well  be  expected,  while  in 
the  case  at  bar  it  would  be  unusual,  extraordinary  and  impro- 
bable, with  no  presumption  arising  from  a  large  price.  Nor 
has  this  case  any  similarity  to  one  where  the  owner  of  real 
estate  has  effected  an  advantage  to  one  portion  of  the  land  to 
the  burdening  of  the  other,  and  thus  altered  the  natural  quali- 
ties so  as  essentially  to  change  the  value  of  the  different  parts. 
(Lampman  v.  Milks,  21  N".  Y.,  505.)  The  maxim  "  Sie  utere 
tuo  et  alienum  non  Icedas  "  is  as  old  as  the  common  law  itself, 
and  the  defendant  had  no  right  to  remove  the  natural  support 
of  the  soil  so  as  to  injure  the  land  of  the  plaintiff,  by  virtue 


1872.]  OF  THE  STATE  OF  NEW  YORK.  133 

Ludlow  t>.  The  Hudson  River  Railroad  Co. 

of  the  conveyance  of  the  plaintiff,  and  was  clearly  liable  for 
the  damages  which  followed  as  a  consequence  of  the  act. 

Even  if  there  may  be  any  question  as  to  the  liability  of  the 
defendant  originally,  it  was  clearly  liable  for  performing  the 
work  in  an  unskillful  manner,  and  there  was,  I  think,  suffi- 
cient evidence  of  negligence  to  submit  that  question  to  the 
consideration  of  the  jury.  There  was  testimony  to  establish 
that  the  soil  was  cut  down  straight  to  the  depth  of  twenty- 
five  or  thirty  feet.  It  was  not  leveled  down,  but  left  by  itself 
in  that  condition,  without  any  protection  whatever  to  prevent 
the  earth  from  sliding  down.  No  efforts  were  made  to  pro- 
tect it,  as  might  have  been  done  successfully,  and  as  should 
have  been  done  in  the  exercise  of  proper  skill  and  care,  and  it 
was  a  fair  question  of  fact  for  the  jury  whether  the  defendant 
was  guilty  of  negligence,  even  if  the  plaintiff  was  not  enti- 
tled to  recover  independent  of  this  question,  upon  the  ground 
already  discussed. 

I  think  that  the  action  was  not  barred  by  the  statute  of 
limitations.  The  injury  complained  of  did  not  accrue  until 
April,  1864,  and  the  action  was  commenced  in  March,  1866. 
The  damages  did  not  exist,  and  had  not  been  incurred  when 
the  work  was  done,  or  within  six  years  thereafter.  If  an 
action  had  been  brought  before  they  had  actually  been  sus- 
tained, the  amount  of  recovery  would  have  depended  upon 
mere  probabilities  and  the  wildest  conjecture.  The  conse- 
quential injury  had  not  happened  until  the  land  of  the  plain- 
tiff glided  away,  and  hence  no  action  could  be  maintained  for 
the  damages  arising  in  consequence  thereof.  The  case  before 
us  is  distinguishable  from  Argall  v.  Bryant  (1  Sandf.,  98). 
There  the  breach  of  the  undertaking  occurred  when  the  act 
was  done ;  while  here  the  act  which  caused  the  injury,  ulti- 
mately, was,  when  it  was  done,  no  trespass  or  any  innovation 
upon  the  plaintiff's  rights,  and  there  was  no  cause  of  action 
until  the  injury  happened.  (See  p.  104  of  same  case,  and  also 
3  Camp.,  539 ;  16  East,  215.)  As  the  court  erred  in  dismiss- 
ing the  complaint  and  in  refusing  to  submit  the  case  to  the 


134  CASES  IN  THE  SUPREME  COURT      [Marcb, 


Wilson  v.  Edwards. 


jury,  the  judgment  must  be  reversed,-  and  a  new  trial  granted'^, 
with  costs  to  abide  the  event. 
BALCOM,  J.,  concurred. 

POTTEK,  J.  I  concur  in  the  result  of  this  opinion.  I  think 
the  words  in  the  deed  "  for  materials  "  had  no  other  effect,  or, 
rather,  had  no  other  intent,  than  to  limit  the  use  of  the  pre- 
mises, so  as  to  prevent  its  use  for  building,  or  for  track  or 
other  purpose  than  obtaining  materials-;  but  amounted  to  no- 
release  from  damages  by  a  careless  or  negligent  use,  if  the 
grantor  was  or  should  be  thereby  injured. 

New  trial  granted. 


LUTHEB  E.  WILSON,  ABRAHAM  GILLESPIE  et  al.,  Appellants,  v~ 
HENKY  S.  EDWAKDS,  Respondent. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,,  1872.) 

Any  material  change  in  the  terms  of  a  contract  upon,  which  one  has  become 
liable  as  surety  releases  such  surety. 

Accordingly,  lield,  that  the  sureties  for  faithful  performance  of  a  contract  to 
negotiate  and  make  sales  of  goods  on  commission,  account  for  sales  and 
pay  over  proceeds,  were  not  liable  for  payment  of  moneys  received  by 
their  principal  for  goods  consigned  to  him  at  an  agreed  price. 

THIS  case  comes  up  upon  exceptions  taken  at  the  circuit,, 
which  were  ordered  to  be  heard  in  the  first  instance  at  the 
General  Term,  judgment  being  in  the  meantime  suspended. 

The  action  was  tried  at  the  Schenectady  Circuit  in  Novem- 
ber,. 1870,  before  one  of  the  justices  of  the  Supreme  Court. 

The  plaintiifs  were  nonsuited  at  the  trial.  The  action  was 
brought  upon  a  contract,  by  which  the  defendant  became 
surety  to  the  plaintiffs,  who  were  partners  in  the  hay  and  pro- 
duce business,  for  the  faithful  performance  by  Daniel  Van 
Yranken  of  a  contract  made  between  him  and  the  plaintiffs. 

By  the  contract  with  Yan  Yranken,  the  plaintiffs  employed 
him  as  their  agent  to  negotiate  and  make  sales  for  them  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  135 


Wilson  v.  Edwards. 


hay  and  other  produce.  He  was  to  be  compensated  for  his 
services  by  a  commission  of  not  more  than  four  per  cent  upon 
the  amount  of  sales  of  produce  other  than  hay,  and  not  more 
than  seventy  cents  per  ton  for  hay ;  and  Van  Yranken  agreed 
to  render  an  account  of  his  sales,  and  to  pay  over  the  amount 
of  sales  made  by  him. 

The  breach  alleged  was  that  Van  Vranken  refused  to  pay 
over  $1,111.78,  which  had  been  received  by  him  as  proceeds 
of  hay,  sent  to  him  by  the  plaintiffs  under  such  contract. 

It  is  shown  by  a  schedule  introduced  in  the  evidence  that 
twenty  car  loads  of  hay  had  been  forwarded  to  Van  Vranken 
at  Boston,  to  be  sold  by  him  as  their  agent,  under  the  afore- 
said contract,  between  the  20th  of  March  and  the  9th  of  April, 
1870,  for  all  of  which  he  had  duly  accounted;  and  that 
after  the  9th  of  April,  thirteen  additional  car  loads  of  hay, 
amounting  to  83  1415-2000  tons,  were  sent  by  the  plaintiffs 
to  Van  Vranken. 

The  plaintiffs  claim  to  recover  of  the  defendant,  under  his 
guaranty,  the  sum  of  $1,111.78,  as  the  proceeds  of  this 
hay  at  the  rate  of  $13.50  per  ton,  after  deducting  $18.47  for  a 
balance  due  Van  Vranken  on  a  previous  accounting. 

The  defendant  claims  that  this  hay  was  sent  to  Van  Vran- 
ken under  a  different  contract  from  the  one  on  which  he 
became  surety ;  that  by  the  first  contract  Van  Vranken  was 
to  sell  upon  commission  only,  while  by  the  last,  under  which 
the  liay  in  question  was  sent,  Van  Vranken  was  to  be  account- 
able to  them  for  the  hay  at  the  specified  price  of  $13.50  per 
ton  net-,  according  to  their  weights,  without  regard  to  the 
amount  he  might  eventually  realize  for  it,  he  taking  the  risk 
of  the  market.  And  the  defendant  claims  that  by  reason  of 
such  variance  he  was  not  liable  under  his  guaranty  for  the 
failure  of  Van  Vranken  to  pay  over  the  proceeds  of  this  hay. 
At  the  close  of  the  testimony  defendant's  counsel  moved  for  a 
nonsuit  upon  the  ground  that  the  character  of  the  employ- 
ment under  which  the  hay  was  shipped  to  Van  Vrauken  was 
different  from  that  specified  in  the  contract  with  the  surety, 
and  that  thereby  the  surety  was  discharged,  and  the  court 


136  CASES  IN  THE  SUPREME  COURT       [March, 

Wilson  v.  Edwards. 

granted  the  motion ;  to  which  ruling  the  plaintiffs  excepted. 
Plaintiffs  also  requested  the  judge  to  submit  certain  questions 
to  the  jury,  which  request  was  refused,  and  plaintiffs  duly 
excepted.  A  bill  of  exceptions  was  made,  which  were  ordered 
to  be  first  heard  at  General  Term. 

Other  facts  material  to  the  case  are  stated  in  the  opinion. 

J.  S.  Landon,  for  the  plaintiffs. 

T.  W.  Jackson,  for  the  defendant. 

Present — MILLER,  P.  J. ;  POTTEB  and  BALCOM,  JJ. 

By  the  Court — MILLEK,  P.  J.  The  action  was  brought 
against  the  defendant  as  surety  of  one  Daniel  Yan  Vranken, 
upon  a  contract  made  by  the  plaintiffs  with  him,  by  which 
he  agreed  to  make  sales  for  them  of  hay,  straw  and  country 
produce,  for  which  he  was  to  receive  not  more  than  four  per 
cent  upon  the  amount  of  sales  of  produce  other  than  hay, 
and  for  hay,  not  more  than  seventy  cents  per  ton.  Van 
Yranken  was  also  to  render  an  account  of  the  sales  made  by 
him,  and  to  pay  over  the  same  to  the  plaintiffs. 

The  justice,  in  granting  the  motion  for  a  nonsuit,  put  his 
decision  upon  the  ground  that  the  evidence  was  undisputed 
that  the  plaintiffs  did  make  an  arrangement  with  Yan 
Yranken,  by  which  he  was  to  become  responsible  for  the  hay, 
to  recover  the  value  of  which  the  action  was  brought,  at  a 
specific  sum,  and  that  this  being  a  variation  from  the  original 
contract,  the  plaintiffs  were  not  entitled  to  maintain  the 
action.  In  cases  of  suretyship,  the  contract  cannot  be 
extended.  Any  material  change  will  exonerate  the  surety 
from  liability,  and  if  the  view  taken  of  the  testimony  was 
correct,  then  the  nonsuit  was  properly  granted.  The  ques- 
tion involved  is  not  free  from  embarrassment,  and  to  deter- 
mine it  properly  it  is  essential  to  examine  the  testimony 
given  upon  the  trial.  The  plaintiff  "Wilson  testifies  that 
Yan  Yranken  came  into  their  office  and  said  he  could  sell  to 


1872.]  OF  THE  STATE  OF  NEW  YORK.  187 


Wilson  v.  Edwards. 


parties  in  Boston,  or  had  made  a  bargain  with  parties  in 
Boston,  and  they  would  take  this  hay  at  $13.50  a  ton,  and  no 
allowance  for  weight  or  wood.  Gillespie  was  then  called  in, 
and,  after  talking  the  matter  over,  it  was  agreed  that  the  hay 
should  go  in  that  way.  Gillespie  corroborates  this  version  of 
the  matter,  and  testifies  that  nothing  was  said  about  any 
commissions.  It  appears,  from  this  evidence  uncontradicted, 
that  it  was  understood  that  Yan  Yranken  was  to  account  to 
the  plaintiffs  for  the  hay  at  a  stated  price,  and  there  is  no 
testimony  which  establishes  a  different  state  of  facts,  as  to 
the  price.  Wade  testifies  that,  in  April,  1870,  Gillespie  told 
him  that  Yan  Yranken  had  bought  the  hay,  and,  in  answer 
to  a  letter  written  by  him,  Wade;  in  which  it  was  stated  that 
Yan  Yranken  had  said  he  bought  the  hay  of  them  at  $13.50 
per  ton,  plaintiffs  wrote  "  Yan  Yranken  was  here  last  week 
and  said  he  would  take  all  the  hay,  good,  bad  and  indifferent, 
at  $13.50  per  ton,  our  weight,  and  no  deduction  for  wood." 
Another  witness,  Hoyt,  testifies  that  Gillespie  stated  to  him 
that  he  had  sold  the  hay  to  Yan  Yranken  and  he  hoped  he 
would  do  well  with  it. 

It  also  appears  that,  on  the  25th  of  April,  Gillespie  went  to 
Boston  and  obtained  from  Yan  Yranken  a  statement,  which, 
at  Yan  Yranken's  request,  Gillespie  made  out,  of  all  the  hay 
which  the  plaintiffs  had  sent  to  him,  Yan  Yranken.  In  the 
first  part  of  this  statement  the  hay  is  entered  at  the  weights 
and  prices  for  which  sold,  and  Yan  Yranken  credited  for 
freights  paid,  and  commissions  at  the  rate  of  seventy  cents 
per  ton,  while  the  last,  being  the  thirteen  tons  in  controversy, 
it  is  entered  at  plaintiff's  weights  at  $13.50  per  ton,  with  no 
credit  for  commissions  or  freight.  Here,  clearly,  was  a 
waiver  of  the  commissions  and  an  acknowledgment  as  to  the 
terms  upon  which  the  hay  was  forwarded  to  Yan  Yranken. 
By  this  statement  both  parties  conceded  that  the  hay  was 
to  be  accounted  for  at  $13.50  a  ton,  although  sold  at  a 
higher  price,  and  the  plaintiffs  did  not  claim  that  Yan 
Yranken  should  account  for  the  excess  of  thirty  cents  a  ton 
over  and  above  the  account  of  commissions  which  he  actually 

LANSING — YOL.  YI.         18 


138 


Wilson  v.  Edwards. 


receiyed.  Another  statement  made  by  Yan  Yranken  of  the 
amount  due,  which  was  accepted  by  the  plaintiffs,  shows  the 
amount  of  Yan  Yranken's  indebtedness  at  $1,111.78,  and 
which  was  claimed  of  him,  is  on  the  basis  of  $13.50  per  ton 
for  the  hay  in  controversy. 

From  the  foregoing  summary  of  the  leading  facts,  it  is 
manifest,  I  think,  that  there  was  a  material  variation  of  the 
original  contract  by  which  Yan  Yranken  took  the  hay  at 
the  price  agreed  upon,  and  without  any  regard  to  com- 
missions, and  I  am  unable  to  discover  any  question  of  fact 
which  should  properly  have  been  presented  to  the  considera- 
tion of  the  jury. 

As  to  the  three  car  loads  of  hay  first  sent,  the  judge  on  the 
trial  remarked  that,  as  to  them,  no  separate  demand  was  made. 
Whether  the  judge  was  right  in  this  respect  is  not  mate- 
rial, for  the  evidence  shows  that  it  was  agreed  upon  that  they 
should  go  in  with  the  residue  of  the  hay.  They  were  put 
upon  the  schedule  at  the  same  price,  permitted  to  remain 
there,  and  the  amount  of  Yan  Yranken's  indebtedness  calcu- 
lated at  the  same  price,  without  any  regard  to  the  price  for 
which  they  were  sold,  or  to  the  amount  paid  for  freight  or 
commissions,  or  any  deduction  for  wood  or  short  weights. 

As  the  case  stood,  I  think  that  the  nonsuit  was  properly 
granted,  and  no  error  was  committed  in  refusing  to  allow  the 
plaintiffs'  counsel  to  go  the  jury. 

A  judgment  must  therefore  be  ordered  for  the  defendant, 
with  costs. 

Judgment  affirmed. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 

Hunt  v.  Chapin. 


THOMAS  J.  HUNT  et  al.,  Appellants,  v.  RICHABD  CHAPIN, 
impleaded  with  JAMES  J.  COWEN,  Respondents. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

The  rule  which  authorizes  one  member  of  a  copartnership  to  bind  the 
firm  by  commercial  paper,  is  only  applicable  to  business  of  a  trading  or 
commercial  nature,  or  to  the  ordinary  business  of  buying  or  selling  for  a 
profit.  It  has  no  application  to  partnerships  formed  for  agricultural 
purposes  or  others  of  a  similar  character. 

A  note  given  by  an  agent  for  money,  which  he  represents  to  the  payee  is 
to  be  used  in  the  business  of  the  principal,  but  which  is  in  fact  applied 
by  him  to  his  own  use,  does  not  bind  the  principal  unless  it  appears, 
either  that  the  agent  has  express  authority  to  execute  the  note,  or  that 
such  authority  may  be  implied  from  the  general  scope  of  the  agents' 
employment,  or  from  some  custom  of  the  business  in  which  he  is  engaged. 

THE  action  was  brought  upon  a  promissory  note,  which 
was  as  follows : 

"  $2,562.50.  YICKSBURG,  July  31*2,  1866. 

"  Four  months  after  date  we  promise  to  pay  to  Hunt  & 
Macaulay,  or  order,  twenty-five  hundred  and  sixty-two  and 
•j5^  dollars,  for  value  received,  with  interest  at  ten  per  cent 
per  annum  from  date  till  paid. 

(Signed)  "  COWEN  &  CHAPIN,  Agents:1 

The  defendant  Cowen  did  not  appear  and  answer.  The 
case  was  tried  before  Justice  Bockes,  without  a  jury,  in  Sara- 
toga county,  in  March,  1870.  The  justice  found  the  facts  as 
follows : 

1st.  Prior  to  1865,  there  had  existed  at  Yicksburg,  Miss., 
a  mercantile  firm  composed  of  the  defendants,  James  J. 
Cowen  and  James  Chapin,  the  firm  name  and  style  of  which 
was  Cowen  &  Chapin,  and  which  firm  had  become  insolvent 
and  had  ceased  business. 

2d.  In  that  year,  1865,  said  Cowen  and  Chapin,  being 
desirous  again  to  open  the  mercantile  business  at  Yicksburg, 
it  was  agreed  between  them  and  the  defendant,  Richard 
Chapin,  who  resided  at  Whitehall,  New  York,  that  the  lattei 
should  furnish  goods  and  capital  for  such  business  at  Yicks- 


140  CASES  IN  THE  SUPREME  COURT       [March, 

Hunt  v.  Chapin. 

burg,  and  that  said  business  should  be  managed  and  carried 
on  by  said  James  J.  Cowen  and  James  Chapin,  as  agents  of 
said  Richard,  under  the  name  and  style  of  "  Cowen  &  Chapin, 
agents,"  the  said  James  J.  Cowen  and  James  Chapin  to  have 
each  one-third  of  the  profits  of  such  business  as  compensa- 
tion for  their  services  in  managing  and  conducting  the  same  ; 
and  the  parties  proceeded  with  such  business  under  this  man- 
agement until  the  death  of  said  James  Chapin,  which  occurred 
on  or  about  the  16th  December  of  the  same  year  1865. 

3d.  Immediately  after  the  decease  of  said  James  Chapin, 
the  defendant,  Richard  Chapin,  repaired  to  Yicksburg,  and  it 
was  then  agreed,  between  said  Richard  and  said  James  J. 
Cowen,  that  the  latter  should  continue  to  manage  and  con- 
duct the  business  as  Cowen  &  Chapin  had  theretofore  done, 
and  under  the  same  name  or  style  of  "  Cowen  &  Chapin, 
agents,"  and  that  his  compensation  for  his  services  in  man- 
aging and  conducting  ike  same  as  agent  of  said  Richard, 
should  be  one-half  of  the  profits  of  such  business,  and  suck 
business  was  thereafter  continued  pursuant  to  this  agreement. 

4th.  About  the  same  time  it  was  further  arranged  and 
agreed,  between  said  Richard,  said  J.  Cowen,  and  the  owner 
of  a  plantation  in  the  vicinity  of  Yicksburg,  that  said  Richard 
should  furnish  the  capital  to  stock  and  work  such  plantation 
for  a  year,  with  a  view  of  raising  cotton  for  market,  the  said 
Cowen  to  attend  to  and  manage  the  same,  and  all  matters 
pertaining  thereto  as  agent,  using  the  said  name  or  style  of 
"  Cowen  &  Chapin,  agents,"  in  the  conduct  and  management 
thereof,  and  to  have  one-third  of  the  profits,  if  any  resulting 
therefrom,  as  his  compensation  for  such  attention  and  man- 
agement ;  the  said  Richard  and  said  owner  to  have  the  other 
two-thirds,  one-third  each,  of  such  profits ;  and  said  planta- 
tion was  stocked  and  worked  under  such  management,  and 
the  said  Richard  returned  to  New  York  in  April,  1866,  and 
was  not  in  Vicksburg  afterward. 

5th.  In  July,  1866,  the  plaintiff  loaned  or  advanced  to 
said  James  J.  Cowen  the  sum  of  $2,500,  and  the  said  Cowen 
made  and  gave  them  the  note  in  suit  in  this  action,  dated 


1872.]  OF  THE  STATE  OF  NEW  YORK.  141 

Hunt  v.  Chapin. 

July  31st,  1866,  and  signed  the  same  "  Cowen  &  Chapin, 
agents."  Such  loan  or  advance  was  made  ostensibly  for  the 
purpose  of  carrying  on  and  working  the  plantation.  The 
funds,  however,  were  not,  nor  were  any  of  them,  used  for 
that  purpose,  but  the  same  were  used  and  employed  by  said 
James  J.  Cowen  in  the  payment  or  settlement  and  compro- 
mise of  debts  contracted  by  the  old  firm  of  "  Cowen  & 
Chapin,"  with  which  said  Richard  had  no  connection,  and 
for  which  he  was  in  no  way  responsible. 

6th.  The  said  James  J.  Cowen  had  no  express  authority  to 
borrow  money  to  be  used  in  the  business  aforesaid,  or  to  bind 
said  Richard  by  or  on  commercial  paper. 

7th.  Said  Cowen  paid  a  portion  of  the  note  in  suit,  but 
there  still  remains  due  to  the  plaintiffs  therein  the  sum  of 
$1,134.59,  at  this  date. 

The  justice  also  held,  as  matter  of  law,  on  the  facts  as 
stated : 

That  said  James  J.  Cowen  had  no  right  or  authority  to 
bind  the  defendant,  Richard  Chapin,  in  or  by  the  note  in 
suit ;  that  the  same  is  not  his  note,  nor  is  he  liable  to  the 
plaintiffs  thereon,  and  the  complaint  should  be  dismissed  as 
to  said  defendant,  Richard  Chapin,  with  costs. 

The  plaintiffs  duly  excepted  to  the  several  findings  of  fact 
and  conclusions  of  law,  and  requested  the  justice  to  make 
certain  other  findings,  which  requests  were  refused,  and  the 
plaintiffs  excepted.  A  judgment  was  entered  in  favor  of  the 
defendant  Chapin  for  costs,  and  the  plaintiffs  appealed. 

Tanner  for  the  appellants  and  plaintiff. 
Esek  Cowen,  for  the  respondent  and  defendant. 
Present — MILLER,  P.  J. ;  POTTER  and  BALCOM,  JJ. 

By  the  Court — MILLER,  P.  J.  The  business  of  the  defend- 
ants, as  merchants,  was  conducted  under  the  name  of  "  Cowen 
&  Chapin,  agents ;"  and  Cowen's  compensation  for  his  ser- 


142  CASES  IN  THE  SUPREME  COURT        [March, 

Hunt  v.  Chapin. 

vices  in  managing  and  conducting  the  same  was  to  be  one- 
half  of  the  profits ;  no  arrangement  being  made  as  to  the 
losses. 

Admitting  that,  ordinarily,  a  participation  in  the  profits 
will  establish  the  existence  of  a  partnership  between  the  par- 
ties in  favor  of  third  persons,  in  the  absence  of  all  other 
opposing  circumstances,  yet,  as  the  proof  shows  that  the 
profits  were  a  measure  of  compensation,  it  may  be  question- 
able whether  the  circumstances  under  which  the  participation 
in  the  profits  existed  did  not  qualify  the  legal  presumption, 
and  establish  that  the  profits  were  to  be  taken  by  Cowen  in 
the  character  of  an  agent,  as  a  mere  compensation  for  labor 
and  services,  and  not  as  a  partner,  (Collyer  on  Part.,  §  44 ; 
Story  on  Part,  §§  32,  36,  38 ;  Buckle  v.  Eckhert,  1  Den., 
337 ;  affirmed  in  Court  of  Appeals,  3  !N".  Y.,  132 ;  Lamb  v. 
Grover,  47  Barb.,  317 ;  Merwin  v.  Playford^  3  Robertson, 
702.) 

But  it  is  not  important  to  decide  this  question,  inasmuch, 
as  there  is  no  evidence  that  the  plaintiffs  or  their  agents  ever 
knew  that  the  defendants  were  connected  in  the  dry  goods 
business;  and  the  note  in  question  was  given,  and  the 
advance  made,  ostensibly  for  the  purpose  of  carrying  on 
and  working  the  plantation. 

As  to  the  business  of  managing  the  plantation,  there  was 
a  separate  and  distinct  agreement,  by  which  the  defendant, 
Chapin,  was  to  furnish  all  of  the  capital  to  stock  and  work 
the  same ;  and  it  was  to  be  conducted  and  managed  by 
Cowen,  independent  of  the  other  business  and  in  connection 
with  the  owner,  upon  a  different  division  of  the  profits.  If 
there  was  any  partnership  at  all  it  was  not  a  commercial 
partnership,  where  one  partner  could  bind  the  firm  by  the 
making  of  commercial  paper.  There  is  no  proof  that  the 
plaintiffs  or  their  agent  had  any  knowledge  or  expectation 
that  the  money  was  to  be  used  in  any  other  business ;  and,  so 
far  as  the  proof  goes,  it  establishes  that  the  money  was  pro- 
cured as  an  advance  for  the  benefit  of  the  plantation  alone, 
although  not  used  for  any  such  purpose.  As  an  inducement 


1872.]  OF  THE  STATE  OF  NEW  YORK.  143 

Hunt  v.  Chapin. 

in  obtaining  the  loan,  it  appears  that  the  plaintiffs  expected 
to  have  the  sale  of  the  cotton  raised,  which  was  to  be  con- 
signed to  them  in  payment  of  the  note.  The  note,  therefore, 
was  given  entirely  distinct  from  the  dry  goods  business,  and 
the  loan  in  part  for  the  benefit  of  the  owner  of  the  land,  who 
was  equally  interested  in  the  profits  with  the  defendants  who 
worked  the  plantation. 

Under  the  circumstances  presented,  I  think  that  the  defend- 
ant, Cowen,  had  no  authority  whatever  to  borrow  money  and 
to  make  a  note  which  would  bind  the  defendant,  Chapin.  The 
rule  which  authorizes  one  member  of  a  copartnership  to  bind 
the  firm  by  commercial  paper  does  not  extend  to  all  kinds  of 
business,  and  is  only  applicable  to  business  of  a  trading  or 
commercial  nature,  or  to  the  ordinary  business  of  buying  or 
selling  for  a  profit.  It  has  no  application  to  professional  part- 
nerships, or  to  those  formed  for  mining,  farming  or  other  pur- 
poses of  a  similar  character. 

It  is  thus  stated  by  Judge  STORY  :  "  This  doctrine  (that  one 
partner  can  make  commercial  paper)  is  not  applicable  to  all 
kinds  of  partnerships,  but  is  generally  limited  to  partnerships 
in  trade  and  commerce,  for  in  such  cases  it  is  the  usual  course 
of  mercantile  transactions,  and  grows  out  of  the  general  cus- 
toms and  laws  of  merchants,  which  is  a  part  of  the  common 
law,  and  is  recognized  as  such.  But  the  same  reason  does 
not  apply  to  other  partnerships,  unless  it  is  the  common  cus- 
tom or  usage  of  such  business  to  bind  the  firm  by  negotiable 
instruments,  or  it  is  necessary  for  the  due  transaction  thereof." 
(Story  on  Partnerships,  §  102  a.)  And  it  has  been  held  in 
England  that  the  rule  does  not  apply  to  partnerships  formed 
for  mining,  and  especially  to  those  formed  for  farming  pur- 
poses. (Healey  v.  Bainbridge,  3  Adol.  &  Ellis,  N.  S.,  316; 
Dickinson  v.  Valpy,  10  Barn.  &  Cress.,  128  ;  Grunslade  v. 
Down,  7  id.,  635.) 

The  business  of  the  defendants  was  the  cultivation  and  rais- 
ing of  crops  on  the  land  which  they  worked  as  farmers  or 
planters  ;  and  even  if  they  can  be  regarded  as  copartners, 
according  to  the  authorities  cited,  one  of  them  could  not  bor- 


144  CASES  IN  THE  SUPREME  COURT      [March, 

Hunt  v.  Chapin. 

row  money  upon  the  credit  of  the  firm,  and  bind  the  firm  by 
promissory  notes  or  bills  of  exchange. 

It  is  insisted  that  if  the  parties  were  not  copartners,  and 
the  signature  to  the  note  is  to  be  treated  as  that  of  Cowen 
only,  the  defendant  is  still  liable  upon  the  contract  of  the 
agent  made  in  his  business  and  for  his  benefit.  Where  the 
act  of  the  agent  is  authorized  by  the  terms  of  the  power, 
such  act  is  binding  upon  the  principal  as  to  all  persons  deal- 
ing in  good  faith  with  the  agent.  (North  River  Sank  v. 
Aymar,  3  Hill,  262 ;  The  Exchange  Bank  v.  Monteath,  26 
N".  Y.,  505  ;  Prest.  &c.,  of  Westfield  Bank  v.  Cowen,  37  N. 
Y,  321.)  And  in  such  case  the  principal  would  be  liable, 
even  although  the  funds  were  misappropriated.  In  the  case 
at  bar,  the  agent  was  not  expressly  authorized  to  borrow 
money  or  to  make  notes ;  and  in  order  to  make  the  principal 
liable,  it  must  be  made  to  appear  that  the  agent  was  acting 
within  the  general  scope  of  the  authority  conferred  upon  him 
by  the  agency.  I  think  it  cannot  be  implied,  from  the  charac- 
ter of  the  business  itself,  that  Cowen  had  authority  to  borrow 
money,  or  to  give  notes  in  conducting  and  managing  the  plan- 
tation. Nor  does  the  proof  show,  in  any  way,  that  the  exer- 
cise of  such  a  power  was  necessary  for  such  a  purpose.  The 
case  is  also  destitute  of  any  evidence  of  the  universal  usage 
of  the  cotton  States  for  merchants  to  make  advances  on  the 
crops,  so  as  to  authorize  the  court  to  regard  it  as  a  course  of 
business,  of  which  they  can  take  judicial  notice. 

The  testimony  establishes  that  Chapin  had  furnished  every 
article  and  all  the  materials  necessary  to  carry  on  the  busi- 
ness, and  that  the  hands  \vere  not  to  be  paid  until  the  end  of 
the  season,  in  December  or  January.  No  money  was  there- 
fore required  until  that  time,  while  the  money  was  actually 
borrowed  by  Cowen  and  the  note  given  in  the  month  of  July 
previous,  and  not  a  dollar  of  the  funds  used  for  the  purposes 
of  the  business  of  the  plantation,  but  appropriated  by  Cowen 
for  his  individual  benefit.  There  is,  therefore,  nothing  to 
show  that  the  money  was  required,  even  if  Cowen  was 
authorized  to  borrow  it. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  145 

Hunt  v.  ( 'ha pin. 

As  there  was  no  express  authority  to  borrow  the  money, 
and  none  to  be  implied  from  the  nature  of  the  business,  or  to 
be  inferred  from  any  custom  to  borrow  money  known  to 
Chapin,  it  follows,  necessarily,  that  Cowen  acted  without 
authority,  and  the  note  was  not  valid  as  against  Chapin. 

Authorities  are  not  wanting  to  sustain  this  view  of  the 
subject.  In  Davison  v.  Stanley  (2  Man.  &  Grang.,  721)  it  was 
held  that  a  bailiff  of  a  large  farming  establishment',  through 
whose  hands  all  payments  and  receipts  passed,  had  no  implied 
authority  to  pledge  the  credit  of  his  employer  by  drawing 
and  indorsing  bills  of  exchange,  and  that  to  fix  the  principal 
the  evidence  should  distinctly  show  that  he  knew,  or  had  the 
means  of  knowing,  the  acts  done  in  his  name.  In  the  case 
under  consideration  there  is  no  evidence  whatever  to,  show, 
either  authority  from,  or  acquiescence  by,  Richard  Chapin. 

In  Howtaynev.  Browne  (17  Mees.  &  Wels.,  595)  the  action 
was  brought  by  the  plaintiffs  to  recover  money  advanced  to  an 
agent  appointed  by  the  company  of  proprietors  for  the  man- 
agement of  a  mine,  and  it  was  held  that  there  was  no  proof 
of  express  authority  to  borrow  money  for  the  purpose  of 
carrying  on  the  business,  nor  that  it  was  necessary,  and  that 
no  such  authority  could  be  assumed.  When  the  bill  upon 
its  face  shows  that  it  was  the  act  of  an  agent,  the  parties  must 
see  that  the  agent  is  acting  within  the  scope  of  his  authority. 
(Beach  v.  Vandewater,  1  Sand.,  265.) 

The  judge  was  right  upon  the  trial,  and  the  judgment  must 
be  affirmed  with  costs. 

Judgment  affirmed. 

LANSING — VOL.  VI.          19 


146  CASES  IN  THE  SUPREME  COURT          [Dec., 


Pitts  v.  Hunt. 


MARILLA  L.  PITTS,  Respondent,  v.  JOHN  H.  HUNT,  Appellant. 

6     146 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1872.) 

Money  paid  by  one  of  two  persons  jointly  indebted  on  contract,  at  the 
request  of  the  other,  stops  the  running  of  the  statute  of  limitations  as  to 
both. 

Where  one  of  the  debtors  sent  his  check  to  the  creditor,  at  request  of  his 
co-debtor,  for  money  of  the  latter  in  his  hands,  there  being  no  other  debt 
due  from  either, — Held,  that  it  was  payment  by  both  within  the  statute. 

Also  that  the  creditor,  in  the  absence  of  other  directions,  having  applied  the 
money  to  her  debt,  that  evidence  of  an  understanding,  unknown  to  the 
creditor  for  its  application  to  that  of  a  third  person,  was  incompetent  to 
show  its  misapplication. 

THIS  was  an  appeal  from  a  judgment  entered  in  the  plain- 
tin' 's  favor  upon  a  decision  of  the  court  without  jury. 
The  facts  appear  in  the  opinion  of  the  court. 

Scott  Lord,  for  the  appellant. 

J.  B.  Adams,  for  the  respondent. 

Present — MULLIN,  P.  J.,  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  At  some  time  prior  to  January  1st,  1850, 
Sanford  Hunt,  Jr.,  died  seized  of  certain  lands  in  the  county 
of  Allegany,  in  this  State,  and  left  surviving  him  his  widow, 
Marilla  L.  Hunt,  now  Marilla  L.  Pitts,  the  plaintiff  in  this 
action,  and  an  infant  daughter. 

An  application  was  made  by  the  plaintiff,  on  behalf  of  the 
infant,  to  the  Supreme  Court  for  authority  to  sell  said  lands, 
and  authority  to  sell  was  given. 

The  lands  were  sold  to  John  H.  Hunt,  one  of  the  defend- 
ants, who  thereupon  purchased  of  the  plaintiff  her  right  of 
dower  in  said  lands  for  the  sum  of  $1,300. 

To  secure  the  payment  of  the  sum,  he  executed,  and 
delivered  to  the  plaintiff  a  paper  signed  by  himself  and 
Horace  Hunt  as  surety,  whereby,  in  consideration  of  the 


1872.]  OF  THE  STATE  OF  NEW  YORK,  147 

Pitts  «.  Huflt. 

conveyance  to  him  of  the  right,  they  agreed  to  pay  the  said 
sum  of  $1,300  and  interest  when  the  receipts  for  the  sales 
of  such  lands,  after  paying  taxes  thereon,  and  after  paying  a 
liability  of  the  late  husband  of  the  plaintiff  to  the  Tolland 
County  Savings  Bank,  would  permit. 

The  action  is  brought  on  this  note.  John  H.  Hunt  alone 
defends. 

No  question  arises  on  any  of  the  defences,  except  that  of 
the  statute  cf  limitations. 

In  support  of  that  defence,  it  was  shown  that  enough  of 
the  proceeds  of  the  sales  of  the  lands  referred  to  in  the 
agreement,  on  which  the  action  was  brought  to  pay  the  taxes 
and  debt  due  to  the  Tolland  County  Savings  Bank,  and  to 
pay  the  debt  of  the  plaintiff,  was  received  as  early  as  1853. 

To  rebut  this  evidence,  it  was  proved,  on  the  part  of  the 
plaintiff,  that  the  defendant,  in  the  years  1860  and  1868, 
wrote  the  plaintiff  that  he  had  no  knowledge  of  the  receipts 
from  the  sales  of  the  lands,  that  his  brother  Horace  had 
charge  of  the  sale  of  them,  and  he  (John  H.)  could  get  no 
statement  in  regard  to  the  sales  from  him,  but  intimates  that, 
if  any  had  been  received,  Horace  was  not  in  a  condition  to 

pay- 
Horace,  in  August,  1864,  writes  to  the  plaintiff,  in  answer, 
it  would  seem,  to  an  intimation  from  her  that  he  had  been 
retaining  money  which  ought  to  be  paid  to  her  on  the 
demand  in  suit  for  fifteen  years,  that  it  was  not  true,  the  fact 
was  otherwise.  He  then  proceeds  to  say  that  the  indications 
were  that,  within  the  then  coming  year,  the  land,  from  the 
avails  of  which  he  expected  to  pay  her  debt,  could  be  sold 
for  enough  to  pay  the  incumbrances,  including  her  debt. 

The  plaintiff  had  no  other  knowledge  or  information  as 
to  when  the  debts  to  be  paid  before  hers  were  or  would  be 
paid,  except  from  the  letters  above  mentioned. 

It  was  also  proved  that,  in  a  letter  dated  25th  September, 
1865,  John  H.  Hunt  inclosed  his  own  bank  check  for  fifty 
dollars,  payable  to  the  plaintiff,  and  informed  her  that"  Horace 
had,  in  his,  John  H.'s  hands,  fifty  dollars,  which  he  desired 


148  CASES  IN  THE  SUPREME  COURT  [Dec.,1872. 

Pitts  v.  Hunt. 

him,  John  H.,  to  8end  to  her.  She  had  no  other  demand 
against  the  said  John  H.  and  Horace  Hunt,  except  the  one 
on  which  this  action  is  brought. 

The  defendants'  counsel  attempted  to  show  by  the  plaintiff 
that  this  money  was  sent  the  plaintiff  to  apply  on  a  debt  due 
by  defendant  to  her  daughter,  upon  the  representations  made 
by  plaintiff  that  it  was  wanted  to  apply  toward  her  daughter's 
education. 

The  plaintiff  denies  that  she  ever  asked  for  money  to  apply 
on  any  indebtedness  due  to  the  daughter ;  but,  on  |he  con- 
trary, asked  for  the  money  to  apply  on  her  own  debt,  and 
represented  to  defendants  that  it  was  to  be  applied  toward  her 
daughter's  education,  hoping  thereby  to  obtain  it  the  more 
readily.  It  would  seem  that  the  plaintiff  had  heard  of  an 
indebtedness  from  the  defendants,  or  one  of  them,  to  the 
daughter  on  account  of  her  interest  in  the  land ;  but  she  waa 
not  notified  that  any  such  indebtedness  existed. 

The  court  has  found,  and  the  finding  is  warranted  by  the 
evidence,  that  the  defendants  did  not  receive  from  the  avails 
of  the  land  enough  to  pay  the  taxes  thereon  and  the  Tolland 
County  Bank  debt  and  the  debt  in  question  until  within  six 
years,  and  the  defendants,  by  stipulation,  admit  that  the 
plaintiff's  right  of  action  had  accrued  before  suit  brought. 
This  disposes  of  the  defence  founded  on  the  statute.  It  is 
also  disposed  of,  if  the  payment  of  fifty  dollars  was  made  on 
the  debt  in  question  in  September,  1865. 

The  only  question  there  is  about  it  on  the  finding  of  the 
referee  is,  whether  the  payment  is  to  be  treated  as  a  payment 
by  John  H.  That  it  is  a  payment  as  against  Horace,  cannot 
be  questioned.  That  it  is  to  be  deemed  a  payment  by  John 
H.,  is  established  by  the  cases  of  Winchell  v.  Hicks  (18  IS". 
T.,  558),  Monroe  v.  Potter  (34  Barb.,  358),  and  Miller  v. 
Talcot  (46  id.,  167). 

On  the  trial  the  defendant  offered  to  prove  that  Horace 
Hunt  requested  John  H.  to  send  the  fifty  dollars  remitted  by 
check  in  1865  to  the  plaintiff  for  her  daughter's  benefit,  and 
that  he  had  previously  paid  $550  into  his  (John  H.'s)  hands 


1871.]  OF  THE  STATE  OF  NEW  YORK.  149 

Graham  v.  The  People. 

for  Mary.  This  evidence  was  objected  to  by  plaintiffs  coun- 
sel and  rejected. 

The  evidence  was  incompetent.  The  money  being  sent 
without  any  direction  as  to  the  application  to  be  made  of  it, 
left  the  plaintiff  at  liberty  to  apply  it  in  payment  of  the  debt 
due  her,  and  that  right  could  not  be  taken  away  by  any  pri- 
vate arrangement  or  understanding  between  the  defendants. 
To  make  the  evidence  competent,  they,  or  one  of  them,  should 
have  given  directions  as  to  the  debt  on  which  it  was  to  be 
applied.  The  judgment  must  be  affirmed. 

Judgment  affirmed. 


WALTEB  GEAHAM,  Plaintiff  in  Error,  v.  THE  PEOPLE,  &c., 
Defendant  in  Error. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

Section  22,  2  R  S.,  740,  has  not  abolished  the  common-law  record  in  crimi- 
nal cases,  as  is  shown  by  §  4,  2  R.  S.,  738 ,  §  10  id.,  739. 

But  the  statute  does  not  require  a  formal  common-law  record  of  judgment 
to  be  filed  in  the  first  instance  or  returned  upon  writ  of  error. 

The  return  to  a  writ  of  error  in  a  capital  case,  failing  to  show  that  the  pri- 
soner had  been  asked  if  he  had  anything  to  say  why  sentence  should  not 
be  passed,  certiorari  to  the  Oyer  and  Terminer  or  clerk,  as  counsel  should 
be  advised,  was  granted  to  bring  up  such  proceedings  as  might  remain  in 
that  court  or  the  records  thereof. 

MOTION  by  the  defendant  in  error  to  dismiss  the  appeal  of 
the  plaintiff  in  error. 

The  prisoner  was  indicted,  tried  and  convicted  at  a  Circuit 
Court  of  Oyer  and  Terminer  held  in  and  for  the  county  of 
Wayne,  for  the  murder  of  one  Otto. 

The  trial  took  place  in  October,  1870.  Sentence  of  death 
was  passed  on  him  on  the  29th  of  the  same  month. 

On  the  5th  of  November,  1870,  the  district  attorney  caused 
to  be  filed  in  the  clerk's  office  of  said  county  a  record  of  said 
conviction,  as  required  by  statute. 

On  the  16th  of  January,  1871,  a  writ  of  error  was  allowed, 


150  CASES  IN  THE  SUPREME  COURT          [Dec-., 

Graham  v.  The  People. 

together  with  a  stay  of  proceedings,  by  DWIGHT,  J.,  who  pre- 
sided at  the  trial  of  Graham,  directed  to  the  Court  of  Oyer 
and  Terminer,  by  which  he  was  tried  and  convicted. 

On  the  24th  of  January,  1871,  a  bill  of  exceptions  taken 
on  trial  of  said  prisoner  was  signed,  sealed  and  filed. 

On  the  27th  of  January,  1871,  the  clerk  of  said  county  of 
Wayne  made  a  return  to  said  writ  of  error,  containing,  1st,  a 
copy  of  the  indictment  found  against  the  prisoner ;  2d,  the 
plea  of  the  prisoner ;  3d,  the  continuance  of  the  proceedings; 
4th,  the  bill  of  exceptions ;  5th,  the  record  of  conviction ; 
6th,  the  writ  of  error,  with  the  allowance  thereof,  with  a  stay 
of  proceedings ;  7th,  the  certificate  of  the  county  clerk  of 
Wayne  that  the  papers  are  correct  copies  of  those  on  file  in 
his  office ;  and,  8th,  the  return  of  the  clerk. 

In  none  of  the  papers  does  it  appear  that  the  prisoner  was 
asked,  after  the  verdict  of  guilty  was  rendered  against  him,, 
and  before  sentence  was  passed,  whether  he  had  anything  to 
say  why  sentence  should  not  be  passed  upon  him.  This 
defect  in  the  record  is  fatal  to  the  conviction. 

To  get  rid  of  this  result  the  defendant  in  error  now  moves 
to  dismiss  the  appeal,  because  no  judgment  record  had  been 
made  up  and  filed  before  the  issuing  and  service  of  said  writ 
of  error. 

It  is  shown  by  affidavit  that  the  court,  before  passing  sen- 
tence, did  inquire  of  the  prisoner  whether  he  had  anything 
to  say  why  sentence  should  not  be  passed  upon  him. 

The  county  clerk  testifies  that  the  return  to  the  writ  of 
error  was  prepared  by  one  of  the  counsel  for  the  prisoner, 
who  was  permitted,  for  that  purpose,  to  examine  and  copy  the 
minutes  of  said  court  and  papers  on  file  in  said  office,  and  who 
represented  to  said  clerk  that  the  return  prepared  by  him  for 
said  clerk  to  sign  contained  all  that  was  necessary  to  be 
returned,  and  that  correct  copies  of  the  several  papers  form- 
ing said  return  were  contained  therein. 

The  clerk  also  sets  forth  what  he  swears  is  a  tnie  copy  of 
the  minutes  kept  on  the  trial,  and  in  them  is  found  the  state- 


1871.]  OF  THE  STATE  OF  NEW  YORK.  151 

Graham  v.  The  People. 

ment  that  the  court  asked  the  prisoner  if  he  had  anything  to 
say  why  sentence  should  not  be  passed  upon  him. 

On  the  part  of  the  plaintiff  in  error  it  is  shown  that  his 
counsel,  after  the  issuing  of  said  writ  of  error,  went  to  the 
county  clerk's  office,  and  asked  to  see  the  minutes  of  the 
trial,  and  they  were  shown  to  them,  and  they  found  entered 
on  the  margin  of  the  minutes,  in  the  handwriting  of  one  of 
the  clerks  in  said  clerk's  office,  the  statement  that  the  court 
had  put  to  the  prisoner  the  question  whether  he  had  anything 
to  say  why  sentence  should  not  be  passed  upon  him,  and  said 
clerk  told  the  counsel  the  entry  was  made  by  him  within  two 
weeks  before  the  interview. 

The  counsel  for  the  defendant  in  error  asks  that,  if  the 
court  declines  to  quash  the  writ  of  error,  a  writ  of  certiorari 
issue  to  bring  up  the  minutes  of  the  court  and  such  other 
papers  as  may  be  necessary  to  show  that  the  court  did  inquire 
of  the  prisoner  whether  he  had  anything  to  say  why  sentence 
should  not  be  passed  upon  him. 

Present — MULLIN,  P.  J1. ;  JOHNSON  and  TALCOTT,  JJ. 

t 

MULLIN,  P.  J.  A  writ  of  error  cannot  regularly  be 
brought  until  after  final  judgment.  (People  v.  Me?'rill,  14 
N.  Y.,  74.)  The  judgment  of  the  court  was,  before  the  enact- 
ment of  the  Revised  Statutes,  evidenced  by  a  record  duly 
signed  and  filed,  which  contained  a  full  statement  of  the  pro- 
ceedings in  the  cause  to  and  including  the  judgment  of  the 
court.  It  was  this  record  that  was  brought  up  by  the  writ  of 
error. 

There  were  and  are  cases  in  which  no  formal  record  can  be 
made  up,  and  in  such  cases  the  final  adjudication  of  the  court 
is  the  judgment  which  is  brought  up. 

It  is  insisted  that,  by  the  Revised  Statutes  (3  R.  S.,  5  ed., 
1034,  §  22),  common-law  record  is  dispensed  with.  That  sec- 
tion provides  that,  upon  any  writ  of  error  being  filed  which 
shall  operate  as  a  stay  of  proceedings,  it  shall  be  the  duty  of 
the  clerk  of  the  court  to  make  a  return  thereto,  without 


152  CASES  IN  THE  SUPREME  COURT          [Dec. 

Graham  v.  The  People. 

delay,  containing  a  transcript  of  the  indictment,  bill  of  excep- 
tions and  judgment  of  the  court,  certified  by  the  clerk  thereof. 
A  formal  record  would  contain  these  several  matters,  but 
these  do  not  constitute  a  complete  record.  It  is  quite  obvious 
that  the  legislature  did  not  intend  to  require  a  formal  record 
to  be  filed  and  returned. 

But  the  common-law  record  is  not  abolished.  By  section 
4  of  article  1,  title  6,  chapter  2,  part  4  of  the  Revised  Statutes, 
a  person  may  require  the  district  attorney  to  file  a  judgment 
record  after  judgment  of  acquittal  or  conviction.  And  by 
section  12  of  the  same  article,  a  copy  of  the  minutes  of  con- 
viction and  the  sentence  thereon,  duly  certified  under  seal, 
together  with  a  copy  of  the  indictment  on  which  the  convic- 
tion was  had,  is  declared  evidence  in  all  courts  and  places  of 
such  conviction,  in  all  cases  on  which  it  shall  appear  that  no 
record  of  judgment  has  been  signed  and  filed. 

The  statute  having  specified  what  papers  the  clerk  shall 
return,  in  obedience  to  the  writ  of  error,  he  cannot  be  required 
to  return  other  or  different  ones.  In  some  cases  the  courts 
seem  to  have  overlooked  the  provisions  of  section  22,  above 
cited. 

In  the  case  of  the  People  v.  Weed  (31  N.  Y.,  465),  a  con- 
viction was  reversed  because  the  record  was  not  signed  by  a 
judge  of  the  court,  but  was  signed  by  the  district  attorney 
only.  DAVIS,  J.,  says :  "  To  constitute  a  record,  it  should 
have  been  signed  by  a  judge  of  the  court.  The  law  on  this 
subject  in  criminal  proceedings  has  not  been  changed."  It 
is  doubtless  true  that  a  record  of  judgment,  to  be  valid,  must 
be  signed  by  a  judge  of  the  court.  But  that  was  not  the  ques- 
tion before  the  court.  It  was  whether  the  matters  required 
to  be  returned  by  the  clerk  in  obedience  to  the  writ  of  error 
had  been  returned,  and,  if  so,  whether  they  showed  the  con- 
viction to  be  legal. 

With  great  respect,  I  submit  that  the  clerk  had  complied 
with  the  statute,  but  the  matters  so  returned  showed  the  judg- 
ment to  have  been  pronounced  by  but  one  of  the  members  of 


1871.]  OF  THE  STATE  OF  NEW  YORK.  153 

Graham  v.  The  People. 

the  court,  and  for  that  reason  the  conviction  was  properly 
reversed. 

The  counsel  for  the  defendant  in  error  refers  us  to  the  case 
of  Lowenbey  v.  The  People  (5  Park.  C.  R.,  414),  as  recogniz- 
ing the  necessity  that  a  record  of  judgment  be  returned. 

No  question  was  raised  as  to  the  form  or  sufficiency  of  the 
return  in  that  case.  A  judgment  record  was  returned,  and  as 
it  contained  all  the  matters  which  the  statute  requires  the 
clerk  to  return,  it  was,  of  course,  sufficient. 

In  Safford  v.  The  People  (1  Park.  C.  R.,  4Y4)  there  was  no 
record.  The  return  was  substantially  the  same  as  the  one 
before  us. 

In  the  case  of  People  v.  Phillips,  the  printed  papers  in 
which  were  handed  up  on  the  argument,  the  return  of  the 
clerk  contained  the  indictment,  bill  of  exceptions  and  the 
judgment  certified  by  the  clerk,  and  this  was  held  to  be  suffi- 
cient. There  was  no  record  of  judgment.  The  return  before 
us  is  in  conformity  to  the  statute,  and  therefore  sufficient. 
That  part  of  the  motion  which  prays  for  the  dismissal  of  the 
writ  of  error  must  be  denied. 

The  defendant  in  error  may  allege  diminution  and  apply 
for  certiorari  to  bring  up  proceedings  in  the  court  below  in 
support  of  the  judgment.  (4  Cow.,  91.) 

It  is  alleged  that  the  judgment  returned  is  not  the  judg- 
ment actually  rendered  ;  and  that  if  the  judgment  entered  in 
the  minutes  kept  by  the  clerk  on  the  trial  were  returned,  the 
defects  appearing  in  the  judgment  contained  in  the  return 
would  be  obviated,  and  the  legality  of  the  conviction  estab- 
lished. 

If  it  be  true,  as  the  clerk  charges,  that  one  of  the  prisoner's 
counsel  imposed  upon  him  a  garbled  copy  of  the  judgment, 
omitting  from  it  matters  actually  contained  in  the  minutes  of 
the  clerk  furnished  to  him  to  enable  him  to  prepare  the  return, 
he  deserves  the  severest  condemnation.  His  conduct  was 
simply  infamous. 

But  if  he  has  given  a  correct  copy  of  the  judgment,  and 
the  clerk  has,  without  authority  of  the  court,  and  since  the 

LANSING — VOL.  VI.        20 


154  CASES  IN  THE  SUPREME  COURT         [Dec., 

Graham  v.  The  People 

rendition  of  the  judgment,  inserted  in  his  minutes  the  state- 
ment which  would  render  the  judgment  legal,  which  without 
them  was  illegal,  he  has  been  guilty  of  a  flagrant  breach  of 
duty,  and  shown  himself  .unfit  to  be  trusted  in  so  responsible 
and  respectable  an  office  as  that  of  clerk  of  the  county  of 
Wayne. 

IsTo  man's  person  or  property  is  safe  if  the  clerk  of  the 
county  may  manipulate  the  records  of  the  county  to  promote 
the  interests  of  friends  or  to  punish  enemies,  or  to  cover  up 
his  own  or  others'  errors. 

It  is  not  necessary  now  to  pass  upon  the  question  of  vera- 
city between  the  clerk  and  the  counsel  for  the  prisoner ;  that 
question  can  be  disposed  most  satisfactorily  either  in  the  court 
below  on  a  motion  to  correct  the  minutes,  or  in  this  court 
after  return  is  made  to  the  certiorari. 

It  is  for  the  clerk  to  determine  what  he  will  return  to  the 
writ.  If  he  should  return  the  judgment  as  it  is  in  the  return 
on  file,  the  judgment  must  be  reversed.  Should  he  return, 
as  it  is  probable  he  will,  the  minutes  as  set  out  in  his  affidavit 
as  used  on  this  motion,  and  that  return  should  stand,  the 
defects  now  relied  on  to  reverse  the  judgment  would  be  cured, 
and  an  affirmance  of  it  might  follow. 

It  would  seem  to  be  necessary,  in  view  of  the  probable 
action  of  the  clerk,  that  the  counsel  for  the  prisoner,  if  they 
think  the  return  to  be  made  would  be  false,  to  apply  in  the 
Oyer  and  Terminer  to  correct  the  minutes  before  a  return  is 
made,  so  that,  if  corrected,  a  correct  copy  of  the  minutes  may 
be  returned. 

It  is  possible  that  this  court,  after  a  return  to  the  certiorari, 
might  compel  an  amendment  of  the  minutes.  It  is  not  my 
intention  to  express  any  opinion  as  to  the  manner  in  which, 
or  the  tribunal  by  which,  the  minutes,  if  erroneous,  may  be 
corrected ;  counsel  must  act  upon  their  own  views  of  the 
practice,  and  the  court  must  be  left  free  to  act  as  shall  be 
in  accordance  with  the  practice  when  the  question  is  again 
presented. 

DENIO,  J.,  in  Willis  v.  The  People  (32  K  Y.,  715,  722), 


1871.]  THE  STATE  OF  NEW  YORK.  155 

Ames  v.  Duryea. 

gives  his  views  of  the  practice,  where  the  proceedings  to  be 
brought  up  by  the  certiorari  occurred  in  the  Oyer  and  Ter- 
miner,  and  are  such  as  could  not  appear  on  the  return. 

A  certiorari  is  allowed  on  the  part  and  behalf  of  the 
defendants  in  error  to  the  Oyer  and  Terminer  of  Wayne 
county,  or  to  the  clerk  thereof,  as  counsel  may  be  advised, 
to  bring  up  such  proceedings  in  the  case  of  The  People  v. 
Walter  Graham  as  may  remain  in  that  court  or  among  the 
records  thereof. 

Leave  is  given  to  the  parties  to  move  in  the  Oyer  and 
Terminer  for  such  relief  as  they,  or  either,  may  deem  him- 
self or  themselves  entitled  to.  (16  N.  Y.,  614.) 


EDWAKD  R.  AMES,  Appellant,  v.  GEORGE  H.  DURYEA  and 
another,  Respondent. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

A  soldier  may  abandon  his  domicile  and  acquire  a  new  one,  as  other  per- 
sons. 

His  purchasing  or  renting  a  dwelling,  to  which  he  removes  his  family  and 
in  which  he  lives,  is  evidence  of  a  change  of  domicile,  in  the  absence 
of  facts  manifesting  an  intention  not  to  remain  permanently  in  such 
dwelling.  „« 

80  the  removal  of  his  family  to  a  place  where  they  take  board  is  evidence  of 
like  change. 

THIS  was  an  appeal  from  the  decree  of  the  surrogate  of 
Chautauqua  county,  admitting  to  probate  the  will  of  Emma 
Louisa  Ames,  who  died  at  Dunkirk  in  that  county  in  Novem- 
ber, 1869.  The  facts,  as  they  appeared  in  evidence,  from  the 
testimony  of  the  appellant,  are  stated  in  the  opinion. 

A.  Hazeltine,  Jr.,  for  the  appellant. 

J.  S.  Carpentier,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 


156  CASES  IN  THE  SUPREME  COURT         [Dec., 

Ames  v .  Duryea. 

MULLEST,  P.  J.  The  appellant  resisted  the  prohate  of 
his  wife's  will  before  the  surrogate  of  Chautauqua  county 
on  the  ground  that  she  was,  at  the  time  of  making  her  will 
and  of  her  death,  domiciled  in  the  State  of  Indiana,  and, 
therefore,  the  laws  of  that  State  controlled  the  disposition  of 
her  property ;  that  after  the  making  of  the  will  she  gave 
birth  to  a  child ;  and,  by  the  laws  of  Indiana,  on  the  birth  of 
a  child,  a  will  theretofore  made  is  revoked ;  and  hence  the 
property  of  the  deceased  descended  to  her  next  of  kin,  as  in 
case  of  intestacy. 

The  facts  bearing  on  the  question  of  domicile  are  these : 

The  appellant  was  born  and  resided  with  his  parents  in 
Indiana  until  1S64-,  when  he  was  appointed  a  second  lieuten- 
ant in  the  army  of  the  United  States,  of  which  he  has  since 
been,  and  still  is,  an  officer.  He  was  between  eighteen  and 
nineteen  years  of  age  when  he  entered  the  army.  He  was 
ordered  by  his  superior  officers  to  Florida,  where  he  married 
his  decased  wife  on  the  3d  of  April,  1867.  He  kept  house  in 
Florida,  in  the  years  1867-8,  for  about  a  year. 

At  some  time  after  May,  1865,  the  appellant's  father 
removed  with  his  family  to  Baltimore,  and  resided  there  for 
some  time,  but  for  how  long  does  not  appear. 

The  deceased,  at  the  time  of  her  death,  was  a  resident  of 
Chautauqua  county  in  this  State. 

The  appellant  was  at  Dunkirk  in  said  county,  with  his 
wife  and  infant  daughter,  at  the  time  of  her  death.  He  had 
been  appointed  Indian  agent,  and  was  then  waiting  orders. 
He  had  made  no  preparation  for  keeping  house  in  Dunkirk. 

The  domicile  of  the  appellant,  when  he  entered  the  army, 
was  in  Indiana.  He  neither  lost  that  domicile,  nor  gained 
another  by  entering  the  army.  His  domicile  remained  in 
Indiana. 

But,  being  a  minor,  he  was  incapable  of  acquiring  a  domi- 
*cile  other  than  that  of  his  father.  (Story  on  Conflict  Laws, 
§  46 ;  2  Kent  Com.,  note  (rf),  p.  431,  3d  ed.) 

If,  therefore,  his  father  removed  to  Baltimore  during  the 


1871.]  OF  THE  STATE  OF  NEW  YORK.  157 

Ames  v.  Duryea. 

appellant's  minority,  the  domicile  of  the  latter  was  removed 
to  Maryland.  (Same  cases.) 

There  is  no  proof  in  the  case  that  the  father  removed  dur- 
ing the  son's  minority ;  and,  in  the  absence  of  all  evidence  on 
the  question,  the  presumption  would  be  that  the  father  con- 
tinued to  reside  in  Indiana,  and,  as  a  consequence,  the  appel- 
lant's domicile  would  continue  in  that  State.  (1  C.  &  JL, 
notes,  295.) 

The  appellant  became  of  age  some  time  in  the  fore  part 
of  the  year  1867. 

From  that  time  he  could  acquire  a  residence  for  himself. 
(Story  on  Confl.  Laws,  §  46.) 

But  until  he  acquired  another,  it  would  remain  in  Indiana. 
(Story's  Confl.  Laws,  $  46.) 

Having  married,  and  after  attaining  his  majority,  he 
entered  on  housekeeping  in  Florida,  the  presumption  would 
be  that  he  acquired  a  domicile  in  that  State.  It  is  a  pre- 
sumption that  a  person  has  his  domicile  where  he  lives.  (Con- 
flict Laws,  §  46 ;  Bempde  v.  Johnson,  3  Yes.,  201 ;  Marsh 
v.  Hutchinson,  2  id.,  229.) 

Although  a  soldier,  while  in  the  army,  neither  acquires  or 
loses  his  residence  in  the  State  in  which  his  domicile  was 
when  he  entered  the  army,  yet  it  is  as  competent  for  a  soldier 
to  abandon  a  domicile  and  acquire  a  new  one  as  it  is  for  any 
other  citizen;  and  his  purchasing  or  renting  a  dwelling- 
house,  to  which  he  removes  his  family  and  in  which  he  lives, 
are  evidence  of  a  change  of  domicile,  in  the  absence  of  any 
fact  manifesting  an  intention  not  to  remain  permanently  in 
such  new  domicile.  (Conflict  of  Laws,  §  46  ;  3  Yesey,  201 ; 
2  B.  &  P.,  229,  note ;  Regma  v.  jfrastonhouse,  82  E.  C.  L., 
901.) 

Some  years  after  his  wife  removes  to  Dunkirk  with  her 
child,  and  the  appellant  either  goes  with  her  or  follows  her 
to  that  place.  They  did  not  keep  house ;  they  boarded  there ; 
and  there  the  wife  died. 

These  facts  establish  another  change  of  domicile,  and  the 


158  CASES  IN  THE  SUPREME  COURT           [Dec., 

Glen  &  Hall  Manufacturing  Co.  •».  Hall. 

new  domicile  was  in  this  State,  and  her  property  subject  to 
our  laws ;  and  the  will  was  properly  admitted  to  probate. 

The  order  of  the  surrogate  is  therefore  affirmed,  with  costs 
to  be  paid  by  the  appellant. 


THE  GLEN  &  HALL  MANUFACTURING  COMPANY,  v.  CHARLES 

S.  HALL. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

In  an  action  to  restrain  the  infringement  of  a  trade-mark  and  for  damages, 
a  cause  of  action  in  favor  of  the  defendant  against  the  plaintiff  for 
infringing  the  same  trade-mark,  claimed  in  the  complaint  to  have  been 
violated  by  the  defendant,  is  not  a  subject  of  counter-claim.  Accord- 
ingly, affirmative  relief  to  the  defendant  in  the  action,  restraining  the 
plaintiff  from  using  the  trade-mark  claimed  in  his  complaint,  and  dam- 
ages for  use  of  the  same,  is  erroneous. 

The  street  number  of  a  building  cannot  become  part  of  a  trade-mark 
unless  made  use  of,  therefor,  by  one  who  has  the  exclusive  use  of  the 
only  building  designated  by  such  a  number  on  the  street. 

THIS  was  a  motion  for  a  new  trial  upon  a  case  made.  The 
facts  are  stated  in  the  opinion. 

W.  F.  Cogsw.ell,  for  the  plaintiff. 

J.  C.  Cockrane,  for  the  defendant. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  plaintiff  brought  this  action  to  restrain 
the  defendant  from  using  its  trade-mark,  and  a  temporary 
injunction  *was  issued. 

On  the  trial  the  court  ordered  a  perpetual  injunction  in 
favor  of  defendant  and  against  the  plaintiff,  restraining  it 
from  using  defendant's  trade-mark,  dissolving  plaintiff's  injunc- 
tion and  appointing  a  referee  to  ascertain  and  report  the 
amount  .of  damages  sustained  by  the  defendant  by  reason  of 


1871.1  OF  THE  STATE  OF  NEW  YORK.  159 

Glen  &  Hall  Manufacturing  Co.  v.  J3all. 

the  injunction  and  in  favor  of  the  plaintiff.  And  it  was  fur- 
ther ordered  that,  on  the  coming  in  and  confirmation  of  the 
report  of  said  referee,  judgment,  &c.,  be  entered  in  favor 
of  the  defendant  for  costs. 

The  facts  in  the  case,  as  found  by  the  referee,  are  these : 
Joseph  Hall  had  been  engaged  in  the  manufacture  and  sale 
of  thrashing  machines  at  No.  10  Water  street,  in  the  city  of 
Rochester,  and  put  up  a  sign  with  No.  10  upon  it,  and  his 
shop  was  known  by  that  number.  On  the  death  of  said  Hall, 
in  the  spring  of  1869,  the  premises  and  property  of  said  Hall 
were  sold  by  his  executors  to  the  defendant,  who  continued 
the  business  at  the  same  place,  and  designated  his  place  of 
business  as  "  Old  Joseph  Hall's  Agricultural  Works,  No.  10 
South  Water  St." 

The  plaintiff,  prior  to  the  fall  of  1869,  carried  on  the  busi- 
ness of  manufacturing  agricultural  implements  at  Brighton, 
some  two  and  a  half  miles  from  Rochester.  In  the  fall  of 
1869  they  rented  a  small  office  on  South  Water  street,  near  to 
defendant's  shop  ;  and,  with  intent  to  injure  defendant,  put  on 
the  store  the  words  and  figures  "  No.  10,"  thereby  indicating 
their  place  of  business  as  being  "  No.  10  "  South  Water  street. 
The  number  was  put  upon  the  implements  manufactured  by 
them. 

The  plaintiff  concedes  that  they  were  properly  refused  the 
relief  asked  for,  but  they  insist  that  none  should  have  been 
granted  to  defendant.  And  it  is  to  get  rid  of  that  part  of 
the  judgment  that  this  motion  for  'a  new  trial  is  made. 

The  defendant  is  entitled,  as  a  matter  of  course,  to  the 
appointment  of  a  referee  to  ascertain  and  report  what  damages 
he  has  sustained  by  reason  of  the  issuing  of  the  injunction. 
So  much  relief  the  defendant  was  clearly  entitled  to. 

The  only  question  remaining  to  be  considered  is,  whether 
the  defendant  is  entitled  to  the  other  relief  awarded  him  by 
the  Special  Term. 

The  words,  No.  10,  were  first  used  by  defendant's  grantor. 
Their  use  was  continued  by  himself;  and  the  use  by  plaintiff 
of  those  words  having  been  found  to  be  fraudulent,  entitled 


160  CASES  IN  THE  SUPREME  COURT           [Dec., 

Glen  &  Hall  Manufacturing  Co.  v.  Hall. 

defendant  to  judgment  restraining  plaintiff  from  their  use,  if 
they  were  a  part  of  his  trade-mark. 

A  trade  mark  is  thus  described  or  defined  by  the  chancel- 
lor, in  Coates  v.  Holbrook  (2  Sandf.  R.,  622,  626) ;  a  particular 
label  or  sign  indicating,  to  those  who  wish  to  give  the  person 
using  it  their  patronage,  that  the  article  is  manufactured  or 
sold  by  him  or  by  his  authority,  or  that  he  carries  on  business, 
at  a  particular  place.  Against  the  use  or  imitation  of  such 
mark  the  injured  party  is  entitled  to  protection  by  injunction, 
and  he  may  maintain  an  action  for  damages.  (/Stokes  v.  Lan- 
degrof,  17  Barb.,  608.) 

In  the  last  case  cited  the  court  say :  "  In  respect  to  words, 
marks  or  devices  which  do  not  denote  the  goods  or  property, 
or  particular  place  of  business  of  a  person,  but  only  the  nature, 
kind  or  quality  of  the  articles  in  which  he  deals,  a  different 
rule  prevails.  No  property  in  such  words,  marks  or  devices 
can  be  acquired.  They  may  be  used  by  many  different  per- 
sons at  the  same  time,  in  their  brands,  marks  or  labels  on  their 
respective  goods,  with  perfect  fairness.  They  signify  nothing, 
when  fairly  interpreted,  by  which  any  dealer  in  a  similar  arti- 
cle could  be  defrauded.  (Cowen  v.  Doty,  7  £osw.,  222 ; 
Amoskeag  Manufacturing  Co.  v.  Spear,  2  /Sandf.  S.  C.  JR., 
599.) 

In  the  latter  case,  DUER,  J.,  says,  at  page  606,  but  he  (the 
owner  of  the  original  trade-mark)  has  no  right  to  an  exclusive 
use  of  any  words,  letters,  figures  or  symbols,  which  have  no 
relation  to  the  origin  or  ownership  of  the  goods,  but  are  only 
meant  to  indicate  their  name  or  quality.  He  has  no  right  to 
appropriate  a  sign  or  symbol  from  the  nature  of  the  fact  which 
it  is  used  to  signify  others  may  employ  with  equal  truth,  and, 
therefore,  have  an  equal  right  to  employ  for  the  same  purpose. 

It  will  be  seen  from  the  foregoing  extracts  that  a  party  has 
the  right  to  be  protected  in  the  use  of  a  trade-mark  that 
indicates  the  place  of  business  where  he  manufactures  or  sells 
his  goods. 

If  by  this  proposition  it  is  intended  to  say  that  a  manufac- 
turer or  vendor  of  an  article  can  acquire  the  right  by  prior 


1871.]  OF  THE  STATE  OF  NEW  YORK.  1GL 

Glen  &  Hall  Manufacturing  Co.  t>.  Hall. 

use  to  the  exclusive  use  of  the  designation  of  the  place  in 
which  he  makes  or  vends  an  article,  as  a  part  of  his  trade-mark, 
it  cannot  and  ought  not  to  be  sanctioned. 

Could  it  be  tolerated  that  the  man  who  first  put  in  bottles 
and  sold  mineral  Waters  in  the  city  of  New  York  might,  by 
putting  on  the  bottles  his  name  and  his  residence  in  that  city, 
exclude  every  other  manufacturer  of  such  waters  from  desig- 
nating such  city  as  his  or  their  place  of  business?  I  appre- 
hend not. 

If  he  may  not  exclude  from  a  city,  why  should  he  from  a 
street  or  a  block  on  a  street  ? 

If  a  building  consists  of  several  stores,  may  the  man  who 
first  commences  the  manufacture  or  sale  of  agricultural 
machines,  by  designating  the  number  of  the  building  as  part 
of  his  trade-mark,  exclude  those  who  may  occupy  the  upper 
stories  of  the  same  number  from  designating  the  same  build- 
ing or  number  as  their  places  of  business  where  similar  articles 
are  manufactured  or  sold  ? 

It  seems  to  me  that  no  such  right  can  be  acquired. 

1  do  not  intend  to  say  that  a  person  may  not  designate  his 
place  of  business  as  a  part  of  his  trade-mark,  so  as  to  entitle 
him  to  protection  from  the  same  designation  by  another. 
But  to  do  it  successfully  he  must  secure  some  other  mode  of 
designation,  a  city,  street  or  number,  at  or  in  which  others 
have  the  same  right  to  deal  and  manufacture  as  himself. 

If  the  man  who  uses  the  street  or  number  as  a  part  of  his 
trade-mark  has  the  exclusive  use  of  the  building  indicated  by 
the  number,  I  do  not  doubt  he  may  use  it  as  a  part  of  his 
trade-mark  against  persons  who  have  no  right  to  or  interest 
in  the  building  indicated  by  the  number,  but  who  use  it  as  a 
part  of  their  trade-mark,  in  order  to  pirate  on  the  one 
justly  entitled  to  use  such  number  to  designate  his  place  of 
business. 

But  on  the  answer  in  this  case  the  defendant  was  not  entitled 
to  the  affirmative  relief  granted  to  him,  beyond  the  reference 
to  ascertain  his  damages  for  breach  of  his  injunction. 

To  entitle  a  defendant  to  affirmative  relief  the  answer  must 
LANSING  — VOL.  VI.  21 


162  CASES  IN  THE  SUPREME  COURT          [Dec., 

Dorn  v.  Fox. 

set  up  a  counter-claim.  (  Wright  v.  Delafield,  25  N.  Y.,  266  ; 
Garvey  v.  Jarvis,  54  Barb.,  179.) 

The  claim  of  defendant  for  relief  is  not  a  counter-claim 
within  the  meaning  of  that  term  as  used  in  the  Code.  It 
does  not  arise  out  of  the  transaction  set  forth  in  the  plaintiff's 
complaint,  nor  does  it  arise  on  contract. 

The  motion  for  a  new  trial  is  granted,  with  costs  to  the 
plaintiff. 


CHARLES  DORN,  Respondent,  v.  MENZO  Fox,  Collector,  &c., 
Respondent. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

The  owner  of  a  farm,  situated  in  two  adjacent  towns,  having  been  assessed 
in  both  for  taxes  of  the  same  year,  brought  an  action  to  compel  the 
respective  collectors,  who  held  each  a  warrant  for  collection  of  his 
town's  tax,  to  compel  them  to  interplead.  He  resided,  at  the  time  of  the 
assessment,  and  so  alleged,  on  that  part  of  the  farm  situated  in  one  of 
the  towns.  Held,  that  he  could  not  claim  to  be  ignorant  of  the  rights  of 
the  respective  collectors,  and  the  action  was  not  maintainable. 

THIS  action  was  brought  to  compel  the  collectors  of  taxes 
for  the  towns  of  Ava  and  Booneville,  Oneida  county,  to  inter- 
plead  and  settle  between  themselves  conflicting  claims  for 
taxes  against  the  defendant's  farm,  which  was  situated  partly 
in  each  of  these  adjacent  towns. 

The  facts  are  stated  in  opinion  of  the  court 

Adams  dk  Swan,  for  the  appellant. 

Richardson  &  Adams,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  plaintiff  alleges,  in  his  complaint,  that 
he  owns  a  farm  lying  partly  in  the  town  of  Ava  and  partly 
in  the  town  of  Booneville,  in  the  county  of  Oneida ;  that 


1871.]  OF  THE  STATE  OF  NEW  YORK. 

Dora  ».  Fox. 

he  lived  on  the  part  lying  in  Booneville  in  the  summer  of 
1869. 

In  that  year  he  was  assessed  for  the  whole  of  said  farm  in 
the  town  of  Ava,  and  the  tax  upon  said  farm  was  forty-one 
dollars  and  eighty-fifty  cents. 

He  was  assessed  in  the  same  year  for  the  whole  of  said 
farm  in  the  town  of  Booneville,  and  the  tax  upon  that  farm 
in  that  town  was  sixty-one  dollars. 

Warrants  have  been  issued  in  both  towns  for  the  collection 
of  said  taxes.  He  is  ready  and  willing  to  pay  said  tax,  but 
does  not  know'  to  which  of  said  collectors  to  pay  it,  and  he 
prays  judgment  that  the  said  collectors  interplead,  and  that, 
on  payment  to  the  one  found  entitled,  he  be  discharged  from 
further  liability  for  said  tax. 

The  plaintiff  asked  and  obtained  a  temporary  injunction  to 
restrain  the  defendants  from  collecting  the  tax. 

The  defendants  answered  severally,  and  each  insisted  that 
the  plaintiff  lived  in  his  town,  and  that  he,  defendant,  had 
the  right  to  collect  said  tax. 

The  issues  were  referred  to  a  referee,  who  found  the  facts 
as  charged  in  the  complaint.  He  ordered  judgment  in  favor 
of  collector  of  Booneville  against  the  plaintiff,  with  costs,  as 
upon  a  trial  of  an  issue  of  law  and  judgment  in  favor  of  the 
plaintiff,  and  against  the  collector  of  Ava,  restraining  him 
from  collecting  said  tax,  with  costs. 

From  this  judgment  defendant  Fox,  collector  of  Ava, 
appeals. 

It  is  alleged,  in  the  complaint,  that  when  the  assessments 
were  made  in  the  towns  in  which  the  plaintiff's  farm  lies,  he 
lived  in  the  town  of  Booneville,  and  that  no  part  of  it  was 
unoccupied.  It  was  taxable  only  in  the  town  in  which  the 
owner  resided.  (1  R.  S.,  5th  ed.,  908,  §  3.) 

Ti  e  plaintiff  is  deemed  to  know  what  the  law  is,  and  must 
be  held  to  know,  therefore,  that  his  farm  was  taxable  in 
Booneville  and  was  not  taxable  in  Ava. 

He  could  not  allege,  truthfully,  that  he  did  not  know  which 


164  CASES  IN  THE  SUPREME  COURT          [Dec., 


Dorn  v.  Fox. 


of  the  collectors  was  entitled  to  the  tax.  This  is  fatal  to  the 
action  as  one  of  interpleader. 

In  the  Mohawk  &  Hudson  JR.  It.  Co.  v.  Clute  (4 
Paige,  384),  the  plaintiff  had  been  assessed  in  the  city  of 
Albany  on  its  capital,  and  also  in  Rotterdam,  in  Schenectady 
county.  The  bill  alleged  that  the  principal  office  of  the 
company  was  in  Rotterdam. 

The  bill  was  filed  to  compel  the  collectors  of  taxes  in  the 
second  ward  of  the  city  of  Albany  and  of  Rotterdam  to 
interplead.  The  chancellor  held  the  bill  was  defective  as  a 
bill  of  interpleader,  because  it  showed  upon 'its  face  that  the 
plaintiff  knew  which  of  the  collectors  was  entitled  to  the 
tax  imposed  upon  the  capital  of  the  company.  He  says  (page 
302)  the  bill  cannot  be  maintained  as  a  bill  of  interpleader 
as  against  the  collectors  of  Rotterdam  and  the  supervisors  of 
Schenectady,  because,  if  the  complainants  were  taxable  any- 
where upon  their  capital  stock  as  personal  estate,  it  is  evident 
t'rom  their  own  showing  that  they  were  properly  taxed  in 
Rotterdam,  where  their  principal  office  or  place  for  trans- 
acting their  financial  concerns  of  the  company  was  situated, 
and  that  the  tax  imposed  in  the  second  ward  of  Albany  was 
illegal  and  void.  It  is  not  sufficient,  to  sustain  a  bill  of  inter- 
pleader, that  one  of  the  defendants  claims  from  the  com- 
plainant the  same  debt  or  duty,  when  it  appears  from  the  bill 
itself  that  the  debt  or  duty  unquestionably  belongs  to  the 
other,  and  that  the  complainant  is  not  ignorant  of  their 
respective  rights  as  between  themselves.  To  authorize  the 
complainant  to  call  upon  the  different  claimants  to  interplead, 
he  must  show  that  he  is  ignorant  of  their  rights,  or  that  there 
is  some  doubt  at  least  to  which  of  such  claimants  the  debt  or 
duty  belongs. 

The  case  before  us  is  identical  in  principle  with  the  one 
cited,  and  disposes  of  it.  The  action  as  one  of  interpleader 
must  fail. 

It  was  held  in  Thompson  v.  Elbitts  (Hopk.,  272),  and  again 
in  the  case  of  The  Mohawk  &  H.  R.  R.  Co.  v.  Clute  (supra), 
that  a  bill  of  interpleader  was  maintainable  between  col- 


1871.]  OF  THE  STATE  OF  NEW  YORK.  165 


Dorn  v.  Fox. 


lectors  of  taxes  for  different  towns  claiming  to  collect  taxes 
for  the  same  year  upon  the  same  property.  When  this 
remedy  fails  the  question  is,  Is  there  any  other  remedy 
whereby  the  person  thus  assessed  may  be  relieved  from  the 
assessment  found  to  be  illegal  ? 

If  there  is  such  a  remedy  it  must  be  against  either  the 
assessors  who  made  the  assessment,  the  collectors  who  attempt 
to  enforce  it,  or  against  the  town  or  county  to  which  it  is 
paid. 

It  is  well  settled  that  an  action  lies  against  the  assessors, 
who  assess  a  person  for  property  who  is  not  an  inhabitant  of 
their  town,  or  where  for  any  other  reason  the  assessment  is 
made  without  jurisdiction.  (My gait  v.  Wasfiburn,  15  N.  Y., 
316 ;  Bailey  v.  JBuel^  reported  in  Albany  Law  Journal,  13 
May,  1871 ;  59  Barb.,  198.) 

When  the  warrant  issued  to  the  collector  is  regular  upon 
its  face,  it  is  a  protection  to  him,  however  illegal  or  irregular 
it  may  in  fact  be. 

The  county  or  town  to  which  an  illegal  tax  may  be  paid  is 
not  liable  to  an  action  for  the  money  so  received.  (37  N. 
Y.,  571 ;  1  Kern.,  392 ;  1  id.,  563.) 

Besides  the  remedy  against  the  assessors  for  making  an 
illegal  assessment,  the  injured  party  can  review  the  action  of 
the  assessors  by  certiorari,  or  strike  it  from  the  roll  by  man- 
damus. (32  How.,  359.) 

These  remedies  are  ample  for  the  protection  of  the  plain- 
tiff, and  there  is  no  reason  why  he  should  invoke  the  inter- 
ference of  a  court  of  equity,  whose  right  to  interfere  is  at 
least  questionable.  If  there  is  a  remedy  in  equity  it  is  con- 
fined to  interpleader,  and  as  that  cannot  be  maintained  in 
this  case  the  action  fails,  and  the  judgment  of  the  referee 
must  be  reversed  and  a  new  trial  ordered,  costs  to  abide  the 
event. 


166  CASES  IN  THE  SUPREME  COURT         [Dec., 

Whitwell  0.  The  Putnam  Fire  Insurance  Co. 


JOHN  WHITWELL,   as  Receiver,  &c.,  v.  THE  PUTNAM  FIBK 
INSURANCE  COMPANY,  Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1872.) 

Evidence  is  admissible,  in  an  action  on  a  fire  insurance  policy,  to  show 
waiver,  by  the  insurer's  agent,  of  a  condition  that  any  other  insurance 
shall  be  by  a  consent  of  the  company  written  on  the  policy. 

It  seems,  an  insurance  upon  merchandise  or  liquors,  &c.,  held  by  the  insured 
for  sale,  covers  the  actual  property  insured,  and  that  also  of  the  same 
description  which  is  substituted  for  it  after  sales. 

And  that  insurance  of  the  liquors  so  substituted  is  within  the  condition  of  a 
previous  policy,  which  requires  the  insurer's  consent  to  other  insurance. 

Whether,  in  case  of  increase  of  the  quantity  of  the  liquors,  a  new  insurance 
would  be  double  insurance,  the  value  of  the  property  exceeding  both 
insurances,  quere. 

Failure  to  obtain  consent  for  other  insurance  upon  a  part  of  the  insured  pro- 
perty avoids  the  insurance  as  to  all  covered  by  the  policy. 

THIS  was  a  motion  for  a  new  trial,  on  exceptions  ordered 
to  be  heard  in  the  first  instance  at  the  General  Term. 

The  plaintiff  brought  his  action,  as  receiver,  upon  a  policy 
of  insurance  issued  to  one  Andrew  J.  Easterly,  by  which  the 
defendant  insured  Easterly  $2,500  for  one  year,  "  on  a  stock 
of  liquors  and  spirits  contained  in  the  frame  building  now 
occupied  by  him  as  a  rectifying  establishment,  in  the  village 
of  Dresden,  Yates  county,  $2,000 ;  on  his  fixtures  and  mate- 
rials used  in  rectifying,  $500." 

The  material  facts  are  stated  in  the  opinion. 

Hunt  &  Green,  for  the  appellant. 

W.  F.  Cogswell,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  On  the  22d  day  of  June,  1869,  A.  J.  East- 
erly procured  a  policy  to  be  issued  to  him  by  the  defendant, 
insuring  him  against  loss  by  fire  for  one  year  upon  his  stock 
of  liquors  and  spirits  contained  in  a  frame  building  then  occu- 
pied by  him  as  a  rectifying  establishment,  in  the  village  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  167 

Whitwell  «.  The  Putnam  Fire  Insurance  Co. 

Durham,  to  the  amount  of  $2,000,  and  on  his  fixtures  and 
materials  used  in  rectifying,  $500. 

This  policy  contained,  amongst  other  conditions,  the  follow- 
ing, viz. : 

"  If  the  assured  shall  have,  or  shall  hereafter  make,  any 
other  insurance  on  the  property  hereby  insured,  without  the 
consent  of  the  company  written  hereon,  the  policy  should  be 
void." 

Subsequently,  and  on  the  22d  January,  1868,  the  said 
Easterly  procured  from  the  Security  Insurance  Company  a 
policy  of  insurance  for  the  term  of  one  year,  insuring  him 
against  loss  by  tire  to  the  amount  of  $1,000  on  his  stock  of 
liquors  and  spirits,  stored  in  a  building  described  in  the 
policy  of  defendant. 

The  consent  of  defendant  to  the  second  insurance  above 
mentioned  was  never  written  on  the  policy. 

On  the  trial  the  plaintiff  gave  evidence  tending  to  prove  a 
waiver  by  defendant's  agent  of  the  condition  aforesaid. 

At  the  close  of  plaintiff 's  proof,  the  defendant's  counsel 
moved  to  strike  out  the  evidence  so  given  by  the  plaintiff, 
and  the  court  granted  the  motion  and  nonsuited  the  plaintiff. 

The  motion  was  granted,  not  because  it  did  not  tend  to 
prove  a  waiver,  but  because  the  subsequent  insurance  was  not 
indorsed  on  the  policy,  as  required  by  the  conditions  of  it. 

Under  these  circumstances  the  plaintiff  must  be  deemed  to 
have  offered  evidence  of  a  waiver  of  the  condition  in  question 
by  the  defendant's  agent,  an  objection  thereto  by  the  defend- 
ant's counsel,  and  that  the  evidence  offered  was  rejected  by 
the  court. 

On  the  15th  of  May,  1868,  the  plaintiff's  stock  of  liquors 
and  spirits  was  destroyed  by  fire  to  the  amount  of  $3,339,  and 
the  fixtures  in  his  rectifying  establishment  to  the  amount  of 
$575. 

It  has  been  repeatedly  held  by  the  courts  in  this  State  that 
the  insurer  may  waive  conditions  inserted  in  a  policy  for  its 
benefit.  (Liddle  v.  The  Market  Ins.  Co.,  29  1ST.  Y.,  184 ; 
Ames  v.  N.  Y.  Union  Ins.  Co.,  14  id.,  253  ;  Wilson  v.  Gen- 


168  CASES  IN  THE  SUPREME  COURT          [Dec., 

Whitwell  V.  The  Putnam  Fire  Insurance  Co. 

esee  M.  Ins.  Co.,  16  Barb.,  511 ;  Hyatt  v.  Waite,  37  id.,  29 ; 
Benedict  v.  Ocean  Ins.  Co.,  31  K.  Y.,  389 ;  Boehen  v.  Wil- 
liamsburgh  City  Ins.  Co.,  35  id.,  131.) 

In  Bochen  v.  The  Williamsburgh  City  Ins.  Co.  (supra)  it 
was  held  that  an  agent  of  an  insurance  company  may  waive  a 
condition  in  the  policy  that  unless  the  premium  is  paid  the 
policy  shall  be  void. 

It  was  held  in  Owen  v.  The  Farmers'  Joint  Stock  Ins.  Co. 
that  an  agent  might  waive  the  condition  in  the  policy 
requiring  proofs  of  loss.  The  same  thing  was  held  in  Shel- 
don v.  The  Atlantic  Fire  and  Marine  Ins.  Co.  (26  N.  Y., 
460). 

If  an  agent  may  waive  one  condition  in  a  policy,  no  reason 
is  perceived  why  he  may  not  waive  any  or  all  of  them,  unless 
his  power  is  restricted,  or  he  is  acting  fraudulently,  with  the 
knowledge  of  the  assured. 

The  defendant's  counsel  refers  to  numerous  cases  that,  at 
first  view,  would  seem  to  be  in  conflict  with  the  cases  above 
cited,  but  which,  on  more  careful  examination,  will  be  found 
to  be  in  harmony  with  them. 

In  Carpenter  v.  The  Providence  Insurance  Company  (16 
Peters,  495)  the  policy  sued  on  contained  a  condition  substan- 
tially the  same  as  the  one  before  us,  in  regard  to  other  insu- 
rances. Another  insurance  being  proved,  the  policy  was  held 
to  be  void ;  but  no  claim  was  made  or  evidence  offered  to 
prove  a  waiver,  in  any  manner,  of  the  condition. 

In  Gilbert  v.  The  Phwnix  Ins.  Co.  (36  Barb.,  372)  the 
policy  contained  the  same  condition,  but  there  was  no  evi- 
dence of  a  waiver  of  the  condition. 

In  Lanmtt  v  The  Hudson  River  Ins.  Co.  (17  N.  Y.,  199, 
note)  it  was  held  that  where  a  policy  of  insurance  contained  a 
provision  that  camphene  should  not  be  used  on  the  premises 
insured,  unless  permission  for  such  use  be  indorsed  in  writing 
on  the  policy,  evidence  to  show  that  at  the  time  of  making 
the  policy  the  plaintiff  might  use  camphene  as  a  light  was 
incompetent,  as  it  directly  contradicted  the  policy.  The  ques- 
tion of  waiver  was  not  in  the  case. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  169 

Whit  well  v.  The  Putnam  Fire  Insurance  Co. 

The  case  of  Barrett  v.  The  Union  M.  Ins.  Co.  (7  Gush., 
175)  was  decided  on  substantially  the  same  grounds. 

In  Wooster  v.  The  Hartford  Fire  Ins.  Co.  (11  Gush.,  265) 
the  question  was  whether  the  condition  (which  was  similar  to 
the  one  before  us)  was  performed  by  the  plaintiff.  The  evi 
dence  was  that  he  obtained  several  policies  on  the  same 
property.  On  one  of  those  issued  by  defendant  there  was 
indorsed  the  insurances  effected  in  other  companies,  but  the 
policy  on  which  the  action  was  brought  was  not  indorsed,  for 
the  reason  that  it  was  not  present.  Plaintiff  showed  the 
agent  a  memorandum  of  the  various  policies  when  the 
indorsement  of  the  other  policy  was  made.  The  agent  told 
plaintiff  that  it  would  make  no  difference  that  the  policy  sued 
on  was  not  indorsed ;  that  he  would  enter  it  on  his  books. 
He  took  the  policy  as  if  to  enter  it,  and  returned  it,  giving 
him  to  understand  that  he  had  entered  it ;  but  he  had  not. 
The  court  held  that  this  was  not  a  performance  of  the  condi- 
tion, and  the  plaintiff  could  not  recover. 

Whether  there  was  a  waiver  of  the  condition,  or  whether 
defendant  was  estopped  from  insisting  on  the  non-performance 
of  the  condition,  was  not  suggested.  Had  it  been,  it  is  quite 
possible  that  the  court  would  have  held  that  there  was  neither 
a  waiver  nor  estoppel.  But  such  a  ruling  would  have  been 
in  direct  conflict  with  the  cases  in  this  State. 

The  same  learned  court,  in  Hall  v.  The  Mechanics'  M. 
Fire  Ins.  Co.  (6  Gray,  169),  held  that  a  policy  was  void 
because  a  subsequent  insurance  was  procured  without  the 
consent  in  writing  of  the  president  of  the  company. 

The  by-laws  of  the  company  required  such  consent ;  and 
they  further  provided  that  the  by-laws  should  not  be  altered 
unless  upon  previous  notice,  and  by  the  votes  of  two-thirds  of 
all  the  members  present  at  the  meeting.  The  verbal  consent 
of  the  president  was  of  no  avail,  as  to  allow  it  would  annul 
the  by-law  which  gave  that  power  to  the  members  of  the  cor- 
poration. 

The  same  court  held,  in  Kimbatt  v.  The  Howard  Fire  Ins. 
Co.  (8  Gray,  29),  that  where  the  policy  requires  the  consent 

LAXSIXG — VOL.  VI.  22 


170  CASES  IX  THE  SUPREME  COURT          [Dec., 

Whitwell  v.  The  Putnam  Fire  Insurance  Co. 

of  the  insurer  to  be  in  writing,  evidence  of  consent  in  any 
other  form  is  incompetent. 

Again,  in  Pendon  v.  The  American  M.  Ins.  Co.  (12  Oush., 
469),  the  same  court  held  that  where  the  condition  of  the 
policy  requires  the  consent  to  be  in  writing,  it  is  not  satisfied 
by  proving  verbal  notice  to  an  agent,  although  a  memoran- 
dum thereof  be  then  made  by  such  agent  in  a  private  book 
of  his  own,  containing  entries  in  relation  to  insurance. 

In  Blake  v.  The  Exchange  M.  Ins.  Co.  (12  Gray,  265)  the 
same  court  concede  that  the  condition  as  to  proofs  of  loss  may 
be  waived,  and  under  some  circumstances  the  insurer  may  be 
estopped  from  insisting  upon  the  non-compliance  with  certain 
conditions  in  the  policy.  But  it  does  not  appear  that  the 
court  intended  to  depart  in  the  slightest  degree  from  the  rule 
applied  in  the  preceding  cases,  as  to  the  necessity  of  strict 
compliance  with  the  condition  where  the  consent  of  the  com- 
pany is  required  by  the  policy  to  be  in  writing. 

The  Massachusetts  cases  are  directly  in  point,  and  support 
the  ruling  of  the  court  at  the  Circuit ;  but  being,  as  it  seems 
to  me  they  are,  in  direct  hostility  to  numerous  cases  in  our 
own  courts,  we  cannot  follow  them,  and  must  hold  that  evi- 
dence of  waiver  of  performance  of  such  a  condition  by  the 
insurer  or  his  general  agent  is  competent,  and,  being  rejected 
in  this  case,  the  nonsuit  must  be  set  aside  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 

In  the  event  of  a  second  trial  of  this  cause,  the  question 
will  necessarily  arise  whether  there  was  in  reality  a  second 
insurance,  within  the  true  intent  and  meaning  of  the  policy. 
The  language  of  the  condition  is,  "  if  the  insured  shall  have 
or  shall  hereafter  make  any  other  insurance  on  the  property 
hereby  insured  without  the  consent,"  &c. 

The  property  insured  by  the  defendant's  policy  was  in 
name  the  same  as  that  insured  by  the  Security  Insurance 
Company,  except  the  fixtures,  which  were  not  in  the  policy 
of  the  last  named  company. 

The  words  "  property  hereby  nsured  "  are  susceptible  of  two 
constructions :  one  of  which  is,  the  same  identical  article  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  171 

Whitwell  v.  The  Putnam  Fire  Insurance  Co. 

property ;  the  other,  articles  of  the  same  description  of  pro- 
perty. 

The  defendant's  policy  was  issued  in  June,  1867,  the  Secu- 
rity Company's  policy  in  January,  1868.  Between  those  dates 
the  insured  had  been  selling  liquors  and  spirits  from  day  to 
day,  and  buying  others,  so  that  the  same  identical  liquors  and 
spirits  were  not  in  the  house  of  the  insured  in  January  that 
were  there  the  preceding  June.  It  would  have  been  impos- 
sible to  effect  an  insurance  on  the  same  property  that  was 
covered  by  defendant's  policy  on  the  day  it  was  issued.  To 
give  effect,  then,  to  the  words  of  the  defendant  prohibiting  a 
second  insurance  on  the  property  thereby  insured,  we  must 
construe  the  words  as  meaning  property  of  the  same  descrip- 
tion deposited  in  the  storehouse  of  Easterly.  Thus  construed, 
it  would  be  competent  for  the  insured  to  purchase  and  sell 
property  and  protect  it  by  insurance,  and  give  effect  to  the 
conditions  of  the  defendant's  policy,  without  annulling  the 
condition  against  second  or  other  insurance  without  notice 
indorsed  on  the  policy. 

It  is  said  that  a  second  insurance  is  not  double  insurance,  or 
insurance  on  the  same  interest  covered  by  the  first  policy,  the 
value  of  the  property  exceeding  the  amount  insured  by  both 
policies. 

The  object  of  the  condition  is  not  to  protect  the  insurer 
against  a  second  insurance  on  the  same  interest,  but  it  is  to 
enable  him  to  know  the  amount  insured  upon  the  property 
covered  by  his  policy.  He  has  an  interest  in  the  inquiry 
whether  the  property  is  of  greater  or  less  value  than  the 
amount  insured ;  and  this  he  cannot  know  unless  it  is  made 
the  duty  of  the  insured  to  inform  him.  If  he  cannot  compel 
this  disclosure,  the  grossest  injustice  may  be  perpetrated  with 
impunity. 

The  change  from  day  to  day  of  the  liquors  and  spirits  in 
the  storehouse  did  not  impair  the  policies ;  they  at  once 
applied  to  whatever  property  of  the  same  description  that 
was  brought  into  the  storehouse.  The  second  insurance  was, 


172  OASES  IN"  THE  SUPREME  COURT          [Dec., 

The  People  ex  rel.  Dilcher  0.  St.  Stephen's  Church. 

therefore,  upon  the  same  property  covered  by  defendant's,  and 
was  within  the  condition  which  required  notice. 

If  the  question  was  whether  a  double  insurance  was  effected 
by  the  second  policy,  I  am  not  prepared  to  say  that  it  was. 

If  Easterly,  on  the  day  of  the  date  of  defendant's  policy, 
had  liquors,  &c.,  of  the  value  of  $3,000,  and  on  the  22d  Janu- 
ary, when  the  second  policy  issued,  had  $10,000  in  value  of 
the  deecription  of  property,  the  second  insurance  would  not 
be,  I  apprehend,  on  the  same  interest  as  the  first,  yet  it  was 
upon  the  same  property. 

I  am  of  the  opinion  that  the  insured  was  bound  to  give 
notice  of  the  second  insurance. 

I  do  not  think  that  the  plaintiff  was  entitled  to  recover  for 
the  value  of  the  fixtures  covered  by  the  defendant's  policy. 
By  its  terms  it  became  void  if  notice  was  not  given  of  the 
subsequent  insurance ;  not  void  in  part  only,  but  void  alto- 
gether ;  and,  being  void,  no  action  could  be  maintained  upon 
it  at  law.  "Whether  equity  would  afford  the  party  relief  is 
not  now  before  us  for  decision. 

A  new  trial  is  granted,  costs  to  abide  the  event. 


THE  PEOPLE  ex  rel.  CHKISTOPLE  DILCHER,  Appellant,  v.  THE 
GERMAN  UNITED  EVANGELICAL  ST.  STEPHEN'S  CHURCH  OF 
BUFFALO,  Respondent. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

A  mandamus  will  issue  to  compel  the  trustees  of  a  church  corporation, 
incorporated  under  the  general  law,  to  restore  to  his  rights,  as  a  corpora- 
tor, one  who  has  been  expelled  from  the  church  membership,  but  who  is 
qualified,  as  a  corporator,  under  the  statute.  : 

This  is  so,  although  the  by-laws  of  the  church  preclude  all  but  church  mem- 
bers from  the  rights  of  corporators. 

A  by-law  presenting  any  different  qualifications  for  membership  than  such 
as  are  required  by  the  statute  is  void. 

The  decision  in  this  case  at  Special  Term  (3  Lansing,  434.)  reversed. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  173 

The  People  ex  rel.  Dilcher  v.  St.  Stephen's  Church. 

APPEAL  from  a  judgment  entered  upon  the  direction  of  the 
Special  Term. 

The  facts  are  stated  in  the  opinion. 

Delavan  F.  Clark,  for  the  appellant. 

Greene  &  Bryant,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  This  is  an  appeal  from  an  order  made  at 
Special  Term  in  Erie  county,  overruling  a  demurrer  to  a 
return  to  an  alternative  mandamus. 

This  alternative  writ  alleges  that  the  relator  was  a  member 
of  the  German  United  Evangelical  St.  Stephen's  Church  of 
Buffalo,  which  has  been  duly  incorporated  under  the  general 
law  of  the  State  regulating  the  incorporation  of  religious 
societies ;  that  at  a  meeting  of  the  members  thereof  he  was 
expelled,  for  having  united  with  two  other  members  of  the 
same  church  in  writing  a  false,  fraudulent,  scandalous  and 
malicious  letter  to  an  officer  of  a  German  Protestant  Evan-' 
gelical  church  in  Pittsburgh  in  relation  to  Rev.  Frederick 
Schiller,  the  pastor  of  the  defendant's  church',  and  was 
deprived,  by  reason  of  such  expulsion,  from  the  exercise  and 
enjoyment  of  the  rights,  privileges  and  liberties,  franchises 
and  profits  appertaining  and  belonging  to  a  membership  in 
said  church ;  and  the  writ  then  commands  the  defendant  to 
admit  and  restore  to  membership  in  said  church,  together 
with  all  the  rights  appertaining  or  belonging  thereto. 

The  return  admits  the  membership  of  relator,  his  expulsion 
for  the  cause  aforesaid.  It  is  alleged  that  by  the  by-laws  of 
said  church  no  one  but  a  member  of  the  church,  admitted 
according  to  the  discipline  of  said  church,  can  vote  at  the 
meetings  of  said  church,  hold  office  therein,  or  enjoy  any  of 
the  rights  and  privileges  of  the  same ;  that  the  relator,  being 
expelled  for  the  cause  above  mentioned,  lost  his  right  to  vote 
and  hold  office,  and  any  and  all  other  rights  he  might  other- 
wise have  been  entitled  to  as  such  member. 


174  CASES  IN  THE  SUPREME  COURT  [Dec., 

The  People  ex  rel.  Dilcher  v.  St.  Stephen's  Church. 

The  principal  ground  of  demurrer  to  the  return,  and  the 
only  one  I  shall  consider,  is  that  the  return  does  not  set  forth 
or  show  any  sufficient  grounds  or  cause  for  the  expulsion  of 
the  relator. 

With  the  action  of  the  church  as  a  religious  body  we  have 
nothing  whatever  to  do,  and  we  decline  altogether  to  enter 
upon  any  review  of  its  action  in  expelling  the  relator  from 
the  church,  acting  as  a  religious  body.  We  have  power  to 
regulate  the  proceedings  of  the  church  corporation  as  a  legal 
being  only,  and  if  it  has  deprived  the  relator  of  any  of  his, 
legal  rights  as  a  member  of  the  corporation,  it  is  our  duty  to 
compel  them  to  reverse  their  action  and  restore  him  to  the 
enjoyment  of  such  rights. 

In  order  to  determine  who  are  entitled  to  be  considered 
corporators  in  a  religious  society  that  is  incorporated,  refer- 
ence must  be  had  to  the  general  law.  (2  R.  S.,  5th  ed.,  609, 
§  7.)  They  are  those  who  have  been  stated  attendants  on 
divine  worship  in  said  church,  congregation  or  society,  and 
contributed  to  the  support  thereof,  according  to  its  usages  and 
customs.  There  is  no  authority  for  requiring  any  other 
qualification  to  constitute  a  person  a  member  of  said  society, 
and  any  by-law,  rule  or  regulation  prescribing  any  other  or 
different  qualification  is  utterly  void.  There  is  no  power 
vested  in  any  number  of  the  corporators,  by  the  statute,  to 
deprive  a  person  qualified  under  it  of  his  right  to  exercise 
the  powers  and  enjoy  the  privileges  conferred  by  it  on  the 
members  of  the  society. 

It  has  been  decided  in  England,  in  the  case  of  King  v. 
Richardson  (1  Barr,  517,  541),  that  a  corporation  aggregate 
may  disfranchise  a  corporator  and  remove  an  officer  for  suffi- 
cient cause,  but  subject  to  the  following  limitations :  To 
authorize  its  exercise  the  offence  must  be,  1st.  Of  so  infamous 
a  nature  as  to  render  the  offender  unfit  to  execute  any  public 
franchise,  unless  it  relates  to  the  official  or  corporate  character 
of  the  party.  2d.  It  must  relate  to  the  official  or  corporate 
charter,  and  amount  to  a  breach  of  the  condition  tacitly  or 
expressly  annexed  to  his  franchise  or  office  ;  and,  3d.  Where 


1871.]  OF  THE  STATE  OF  NEW  YORK.  175 

The  People  ex  rel.  Dilcher  v.  St.  Stephen's  Church. 

the  offence  is  of  a  mixed  nature,  being  not  onlj*  against  his 
official  or  corporate  duty,  but  also  matter  indictable  at  com- 
mon law. 

As  to  the  first  class,  the  corporation  cannot  remove  or  dis- 
franchise without  a  previous  conviction  at  common  law.  As 
to  the  second,  the  corporation  may,  after  hearing  the  accused, 
disfranchise  or  remove  him.  And  as  to  the  third,  it  is  doubt 
ful  whether  there  is  power  to  disfranchise  until  there  has 
been  a  conviction.  (Fawcett  v  Charles,  15  Wend.,  473.) 

NELSON,  J.,  in  this  case,  expresses  a  doubt  whether  a  pri 
vate  corporation  has  power  to  disfranchise  a  corporator.  But 
with  great  respect  for  the  learned  judge,  it  seems  to  me  there 
should  be  no  doubt  on  the  subject,  especially  in  private  stock 
corporations,  or  in  corporations  in  which  the  corporators  have 
any  pecuniary  interests  to  protect.  Surely  a  stockholder  in 
a  bank  cannot  be  disfranchised  because  his  private  character 
or  conduct  may  be  immoral. 

A  member  of  a  corporation  organized  under  the  law  relating 
to  the  incorporation  of  religious  societies,  if  a  pew  owner,  has 
a  pecuniary  interest  in  the  management  of  its  affairs  by  its 
trustees.  They  may  neglect  to  keep  the  church  edifice  in 
repair,  to  supply  fuel  or  lights,  to  employ  a  minister ;  they 
may  embezzle  its  funds  and  be  guilty  of  violations  of  the 
duty  they  owe  the  society  in  many  ways,  affecting  injuriously 
the  interests  not  only  of  those  who  own  pews  but  of  those 
who  attend  worship  in  the  church  and  contribute  to  its  funds. 

Considering  the  corporation  as  a  mere  civil  organization, 
the  bad  character  or  .conduct  of  the  corporator  cannot  deprive 
him  of  his  rights,  although  it  may  bring  discredit  on  the 
society  to  have  such  a  person  a  member  of  it.  If  we  were 
dealing  with  the  church  as  a  religious  body,  other  and  differ- 
ent considerations  would  be  acted  upon. 

The  ground  on  which  the  relator  was  disfranchised  is  set 
forth  in  the  return.  The  conduct  imputed  to  him,  and  which 
constitutes  the  ground  of  disfranchisement,  is  certainly  dis- 
reputable, but  it  does  not  furnish  any  adequate  reason  for 
depriving  him  of  his  rights  as  a  member  of  the  corporation,  if 


176  CASES  IN  THE  SUPREME  COURT         [Dec., 

Voorliees  «.  Burchard. 

the  other  members  had  the  right  to  disfranchise  him  for  any 
cause. 

We  think  the  relator  is  entitled  to  a  mandamus  to  restore 
him  to  his  rights  as  a  member,  not  of  the  religious  organiza- 
tion, but  of  the  corporation,  to  the  end  that  he  may  exercise 
all  the  powers  and  possess  all  the  rights  and  privileges  per- 
taining to  members  of  said  corporation. 

The  order  of  the  Special  Term  must  be  reversed,  and  judg- 
ment ordered  for  the  relator,  that  a  peremptory  mandamus 
issue,  with  costs  to  the  relator. 


PETEK    S.    VOOKHEES,    Appellant,   v.    HENET    BURCHAKD, 
Respondent. 

TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 


The  right  to  use  ground  contiguous  to  a  saw-mill,  for  the  piling  of  logs, 

may  be  gained  by  prescription. 

And  it  passes  by  conveyance  of  the  mill  as  appurtenant  thereto. 
Evidence  of  the  intention  of  the  parties  to  the  deed,  that  the  grantee  should 

not  acquire  the  easement,  cannot  prevail  over  a  conveyance  of  the  mill 

and  its  appurtenances. 
Evidence  is  admissible  to  restrict  the  right  to  such  premises  as  are  reason- 

ably necessary  for  the  enjoyment  of  the  easement. 

THIS  was  an  appeal  from  a  judgment  in  favor  of  the 
defendant,  entered  upon  the  report  of  a  referee. 

The  action  was  trespass,  for  entering  the  plaintiff's  close 
and  drawing  arid  leaving  logs  thereon. 

The  defendant  claimed  a  right  to  enter,  &c.,  under  one 
Brady,  who  he  alleged  to  be  owner  of  the  freehold.  The 
defendant  also  claimed  that  the  locus  in  quo  was  a  public 
highway,  and  alleged  a  right  in  the  public,  by  prescription, 
to  pile  logs  on  the  land.  The  facts,  as  they  appeared  upon 
the  trial,  are  stated  in  the  opinion. 

D.  Rumsey,  for  the  appellant. 

George  B.  Bradley,  for  the  respondent. 

Present  —  MULLIN,  P.  J.  ;  JOHNSON  and  TALCOTT,  JJ. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  177 

Voorhees  v.  Burchard. 

MULLIN,  P.  J.  In  1840,  and  for  a  long  time  prior  thereto, 
Ransom  Rathbone  owned  the  property  in  question,  together 
with  a  large  quantity  of  land  adjoining.  Oil  the  premises  so 
owned  a  saw-mill  was  erected  in  1840;  and  for  a  period 
thereafter  of  some  twenty -five  years  logs,  drawn  to  be  sawed 
in  the  saw-mill,  were  piled  on  the  locus  in  quo  and  other 
lands  adjoining.  From  time  to  time  portions  of  the  lands  on 
which  logs  -were  piled  were  sold,  and  thereafter  the  logs  were 
piled  on  the  remaining  lands.  The  only  place  remaining  on 
which  logs  may  be  piled  is  the  locus  in  quo.  The  only  way 
to  the  mill  is  over  the  piling  ground.  Over  it  the  said  Rath- 
bone  was  accustomed  to  pass  to  his  said  mill,  as  have  been 
those  who  succeeded  him  in  the  ownership  thereof. 

Ransom,  on  the  14th  of  August,  1840,  conveyed  to  Henry 
W.  Rathbone  the  mill  property  above  mentioned,  together 
with  the  appurtenances  and  all  the  estate,  title  and  interest 
of  the  said  Ransom. 

Prior  to  1860  H.  W.  R.  erected  on  the  premises  so  pur- 
chased by  him  a  grist-mill ;  the  way  to  which  was  and  is 
over  the  locus  in  quo. 

In  1865  H.  W.  R.  conveyed  the  said  mill  property  with 
the  appurtenances  to  Francis  J.  Brady,  who  went  into  pos- 
session under  the  conveyance  to  him,  and  has  ever  since  used 
the  locus  in  quo  as  a  place  for  piling  logs  for  his  saw-mill. 

The  premises  in  question  were  conveyed  to  the  plaintiff  in 
1861,  who  is  now  the  owner  thereof. 

Brady,  who  owned  the  mill  and  had  logs  piled  on  the  locus 
in  quo,  gave  his  consent  to  defendant  to  pile  logs  thereon ; 
and  the  trespass,  for  which  this  action  was  brought,  was  for 
piling  on  said  premises  a  load  of  logs. 

The  cause  was  referred,  and  the  referee  finds  the  facts 
above  stated,  and  that  the  use  of  the  locus  in  quo  is  necessary 
to  the  beneficial  enjoyment  of  said  mill,  as  a  way  to  said 
mills  and  mill-yard,  and  that  the  said  right  of  way  and  of 
piling  logs  passed  to  Brady  as  appurtenant  to  the  said  mill. 

Assuming  that  Brady,  by  virtue  of  the  conveyance  to  him. 
acquired  the  right  to  pile  logs  on  the  locus  in  fpio  for  the  use 

LA.VSLVG— VOL.  VI.         23    * 


178  CASES  IN  THE  SUPREME  COURT          [Dec., 

Voorhees  v.  Burchard. 

of  his  mill,  that  did  not  give  him  the  right  to  pile  or  author- 
ize others  to  pile  thereon  logs  not  for  the  use  of  his  mill. 

It  would  seem  that  it  was  a  custom  mill,  to  which  persons 
having  logs  which  they  wished  to  have  sawed  into  lumber 
brought  them,  and  they  were  sawed  by  the  owner  of  the 
mill  for  a  compensation,  paid  by  the  owner  of  the  logs. 

The  defendant,  I  infer  from  the  evidence,  brought  the  logs, 
for  the  piling  of  which  this  action  is  brought,  to  Brady's  mill 
to  be  sawed ;  and  if  he  (B.)  had  the  right  to  use  the  locus  in 
quo  as  a  place  for  piling  logs,  the  defendant  is  not  liable  in 
this  action. 

But  if  Brady  had  no  such  right  he  could  confer  none  on 
the  defendant,  and  he,  defendant,  would  be  liable. 

The  plaintiff  is  concededly  the  owner  of  the  premises  in 
dispute,  either  absolutely  or  subject  to  the  right  of  Brady  and 
his  customers  to  pile  logs  thereon. 

Brady  has  no  title  to  the  premises ;  they  are  not  embraced 
in  his  deed,  and  the  title  to  them  would  not  pass  as  appurte- 
nant to  the  mill  property  (Lawrence  v.  Delano,  3  Sandf.,  333) ; 
but  the  easements,  that  is.  the  right  to  travel  over  it  and  to 
pile  logs  upon  it,  might.  (Huttemeier  v.  Albro,  18  N.  Y.,  48  ; 
Taber  v.  Bradley,  id.,  109 ;  Oakley  v.  Stanley,  5  "Wend.,  523 ; 
Leroy  v.  Platt,  4  Paige,  77 ;  4  Kent's  Com.,  467,  468.) 

If  there  was  a  plainly  marked  way  from  the  highway  to 
the  mills  those  who  desire  to  go  to  the  mills  must  follow  it. 
Under  such  a  right  the  right  to  pile  logs  cannot  be  sup- 
ported. They  are  distinct  rights  or  easements,  and  must  be 
used  each  by  itself. 

Ransom  Rathbone  having  used  the  locus  in  quo  for  a  way 
to  his  mill  and  for  piling  logs,  if  there  was  no  other  way  to 
it,  and  he  granted  the  mill  with  its  appurtenances,  this  would 
carry  the  way,  either  as  appurtenant  to  the  mill  or  as  a  way 
of  necessity. 

The  premises  in  question  being  used  by  Ransom  for  piling 
logs  prior  to  and  at  the  time  of  the  sale  by  him  to  Henry  W. 
Rathbone,  the  right  to  pile  would  pass  if  there  was  no  other 
place  for  piling. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  179 


Voorhees  t>.  Burchard. 


But  however  that  might  be,  that  right  was  acquired  by 
Henry  after  twenty  years'  use,  and  it  passed  to  Brady  as  an 
appurtenant  to  the  mill;  and  plaintiff  took  his  title  in  subor- 
dination to  it. 

Brady  was  therefore  authorized  to  permit  his  customers  to 
pile  logs  on  the  premises  in  question ;  and  that  permission 
justified  the  defendant  in  piling  them  on  the  land. 

Evidence  was  given  that  when  Henvy  W.  Rathbone  took  his 
conveyance  from  Ransom,  it  was  not  intended  or  understood 
that  the  former  acquired  any  easement  in  the  locus  in  quo. 
Some  evidence  was  also  given  tending  to  show  that  Brady 
did  not  understand  that  he  acquired  any  interest  in  said 
premises. 

But  the  rights  of  the  parties  must  be  ascertained  from  the 
deeds  themselves,  the  situation  of  the  premises,  and  the  acts 
of  the  parties  under  the  deeds.  The  understanding  of  parties 
cannot  overcome  the  force  of  the  evidence  derived  from  the 
deeds,  the  situation  of  the  premises  and  the  acts  of  the  par- 
ties. 

Whatever  Henry  may  have  known  or  declared,  he  never- 
theless did  travel  over  these  premises  and  pile  logs  thereon 
for  over  twenty  years.  This  user  created  a  right,  if  he  had  it 
not  before.  Having  it,  he  could  lawfully  convey  it,  and  he 
did. 

The  question  as  to  how  much  of  the  locus  in  quo  was 
necessary  to  be  used  as  a  way  or  for  piling  logs  was  compe- 
tent. If  there  was  more  land  than  was  reasonably  necessary 
for  the  purposes  of  a  way  and  of  piling,  it  belonged  to  the  plain- 
tiff. And  it  would  be  an  invasion  of  his  right  of  property 
for  Brady,  or  those  acting  by  his  permission,  to  pile  logs  on 
the  premises. 

The  judgment  of  the  referee  must  be  affirmed. 

Judgment  affirmed. 


180  CASES  IN  THE  SUPREME  COURT 


Doyle  v.  Gibbs. 


HENKY  DOYLE  v.  ANSON  A.  GIBB&. 
(GENERAL  TERM  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

One  occupying  a  bouse  as  servant  of  the  owner,  upon  termination  of  the 
service  was  permitted  to  retain  possession  upon  payment  of  rent  until 
the  condition  of  his  wife  should  allow  her  removal.  Held,  that  the 
duration  of  the  occupancy  depending  on  a  contingent  future  event,  the 
relation  of  tenancy  at  will  or  by  sufferance  did  not  arise  between  the 
parties. 

Held,  also,  that  the  occupant  held  under  a  mere  license  for  the  time  agreed, 
and  no  notice  to  quit  was  necessary. 

THIS  was  a  motion  for  a  new  trial,  upon  a  case  made  and 
exceptions  ordered  to  be  heard  in  the  first  instance  at  General 
Term. 

The  action  was  replevin,  and  the  plaintiff  had  a  verdict  for 
the  value  of  the  property  claimed,  and  nominal  damages, 
upon  facts  which  are  stated  in  the  opinion. 

E.  A.  Nash,  for  the  defendant,  cited  Hay  wood  v.  Miller 
(3  Hill,  90)  ;  People  v.  Aimes  (45  Barb.,  304) ;  Ely  v.  Ehle  (3 
K  Y.,  507) ;  Nichols  v.  Primer  (18  K  T.,  313) ;  Newman 
v.  Jeune  (47  Maine,  520,  522) ;  Spalding  v.  Spalding  (3 
How.,  299);  2  Greenl.  Ev.,  §  642;  Hilliard  on  Torts  (3d 
ed.,  77 ;  2  id.,  97) ;  Heald  v.  Carey  (3-Eng.  L.  &  Eq.,  429) ; 
Gobi  v.  Dows  (9  Barb.,  230) ;  Boyce  v.  Brockway  (31  K  Y., 
490) ;  Parks  v.  Purdy  (11  Mo.,  219) ;  Bushel  v.  Miller  (1 
Strange,  128) ;  Fould  v.  Willoughby  (8  Mees.  &  W.,  540) ; 
Van  Valkenburgh  v.  Thayer  (57  Barb.,  196) ;  Thorogood  v. 
Robinson  (6  Ad.  &  Ell  [K  S.],  769) ;  Peck  v.  Knox  (1  Swee- 
ney, 311) ;  Stockwell  v.  Plielps  (34  K  Y.,  364,  365). 

H.  Decker,  for  the  plaintiff,  cited  Burns  v.  Bryant  (31 
N.  Y.,  454) ;  Sarsfield  et  al.  v.  Healy  (50  Barb.,  248) ; 
Post  v.  Post  (14  Barb.  ,  353) ;  Connah  v.  Hale  (23  Wend., 
462,  and  cases  there  cited) ;  Allen  v.  Crary  (10  id.,  462 ; 
1  Keyes,  468) ;  Wheeler  v.  McFarland  (10  id.,  324) ;  Boyce 


1871.]  OF  THE  STATE  OF  NEW  YORK.  181 

Doyle  v.  Gibbs. 

et  al.  v.  Brockway  (31  N.  Y.,  490) ;  Cobb  v.  Dows  et  oL. 
(9  Barb.,  242). 

Present — MDLLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  J «L 

MULLIN,  P.  J.  This  is  an  action  of  replevin,  brought  to 
recover  the  possession  of  a  quantity  of  household  property, 
which  the  plaintiff  alleges  the  defendant  has  unlawfully  taken 
and  detained. 

The  plaintiff  entered  into  an  agreement  with  defendant  to 
work  for  him  as  laborer ;  he  was  to  have  toward  his  wages 
the  use  of  a  cow  and  pasture  for  her,  the  use  of  a  house  and 
other  property  and  privileges,  and  twenty  dollars  per  month 
as  long  as  they  could  agree. 

The  plaintiff  commenced  work  for  defendant  about  the  1st 
April,  1869,  and  took  possession  of  a  house  belonging  to  the 
defendant  and  continued  to  work  for  him  for  about  seven 
months,  when  defendant,  as  plaintiff  claims,  discharged  liim 
from  his  employment.  At  the  time  of  the  discharge  defend- 
ant told  plaintiff  he  must  have  possession  of  the  house,  and 
plaintiff  promised  to  give  up  the  possession  as  soon  as  his 
wife  was  well  enough  to  be  removed.  The  plaintiff  testifies 
that  the  defendant  then  told  him  he  must  have  rent  for  the 
use  of  the  house  and  that  he  agreed  to  pay  it.  The  defend- 
ant refused  to  rent  it  for  any  definite  length  of  time.  Plain- 
tiff told  him  he  wanted  due  notice  when  he  must  quit  the 
premises,  to  which  remark  defendant  made  no  reply  ;  subse- 
quently the  defendant  demanded  rent,  and  plaintiff  told  him 
to  deduct  it  from  some  money  he  says  defendant  owed  him. 

About  the  holidays  plaintiff  and  his  wife  went  to  visit  her 
father,  leaving  their  goods  in  the  house,  intending  to  return 
the  next  day,  but  the  weather  being  bad  they  could  not. 
While  plaintiff  and  his  wife  were  at  her  father's,  plaintiff 
returned  to  the  premises  in  question  to  feed  his  pigs  left 
there.  While  plaintiff  was  thus  absent,  defendant  entered 
the  house  and  removed  plaintiff's  goods,  from  the  rooms  in 
he  left  them,  on  to  the  stoop  and  into  a  small  room  in 


182  CASES  IN  THE  SUPREME  COURT          [Dec., 

Doyle  v.  Gibbs. 

the  wood-shed,  and  put  another  person  with  his  goods  into 
possession.  The  room  into  which  the  goods  were  put  was 
not  fastened  in  any  way,  nor  is  there  any  claim  of  injury  to 
them.  After  plaintiff  left  on  his  visit  and  before  he  went  to 
find  his  goods,  he  drove  away  his  pigs  and  a  calf  he  had  on 
the  premises.  No  demand  was  made  of  defendant  before  suit 
for  the  goods. 

The  defendant  on  his  own  behalf  testified  there  was  no 
letting  of  the  place  for  any  particular  term,  nor  was  there 
any  talk  about  rent,  nor  did  he  owe  plaintiif  anything  from 
which  rent  could  be  deducted. 

The  court  charged  the  jury  that  the  tenancy  terminated 
when  plaintiff  was  discharged  from  defendant's  employ,  and 
defendant  had  the  right  to  remove  plaintiff's  goods  unless 
there  was  a  new  tenancy  created  after  the  former  one  termi- 
nated, by  virtue  of  which  plaintiff  had  the  right  to  posses- 
sion so  long  as  he  paid  rent,  or  until  a  notice  to  quit  was 
served.  If  such  tenancy  was  created,  defendant  had  no  right 
to  enter  and  put  out  plaintiff's  goods  and  if  he  did,  he  was 
liable  in  this  action.  The  only  exception  to  the  charge  is  in 
these  words,  the  defendant's  counsel  excepted  to  that  part  of 
the  charge  in  which  the  jury  is  instructed  that  the  defendant 
was  liable  in  this  form  of  action.  The  court  had  given  no 
such  instruction,  unless  accompanied  by  qualifications  that 
rendered  instruction  entirely  proper.  If  the  defendant  is 
entitled  to  a  new  trial  upon  any  ground  taken  or  suggested 
at  the  trial,  it  is  because  his  motion  for  a  nonsuit  was  impro- 
perly denied.  The  motion  was  denied  on  the  ground  that 
there  was  evidence  in  the  case  of  an  agreement  between  the 
parties,  after  the  plaintiff  was  discharged,  that  the  plaintiff 
should  remain  in  possession  as  a  tenant  of  defendant  so  long 
as  he  paid  rent  or. until  lie  had  written  notice  to  quit.. 

In  order  to  a  proper  disposition  of  the  question  raised  upon 
this  motion  it  is  necessary  to  ascertain  the  exact  relation  the 
parties  occupied  toward  each  other  at  the  termination  of  the 
contract  of  hiring.  That  contract  and  the  occupancy  of  the 
dwelling-house  under  it  did  not  create  the  relation  of  land 


1871.]  OF  THE  STATE  OF  NEW  YORK.  183 

Doyle  v.  Gibbs. 

lord  and  tenant,  but  that  of  master  and  servant  only.  This 
was  directly  decided  in  Hay  wood  v.  Miller  (13  Wend.,  90) ; 
Doe  v.  Derry  (38  E.  C.  L.  291). 

If  the  relation  of  landlord  and  tenant  did  not  exist,  the 
plaintiff  was  not  in  possession  as  a  tenant  holding  over,  after 
the  expiration  of  his  term,  bat  he  was  in  as  a  servant  dis- 
missed from  service,  but  incapable  by  reason  of  the  condition 
of  his  wife  from  removing.  It  was  in  this  condition  of 
things  that  the  plaintiff  asked  permission  to  remain  until  his 
wife  could  get  ready  to  leave,  and  that  the  plaintiff  said  he 
should  look  to  him  for  rent.  If  an  agreement  is  to  be 
implied  from  the  facts  stated  by  the  plaintiff,  it  must  be  an 
agreement  that  plaintiff  remain,  paying  rent,  until  his  wife 
was  well  enough  to  remove.  No  other  time  was  talked  of 
or  desired  by  the  plaintiff,  and  it  is  obvious  that  defendant 
only  consented  to  plaintiff's  occupancy  until  that  event 
occurred.  The  plaintiff  was  not  a  tenant  at  will  nor  at  suf- 
ferance, but  until  the  happening  of  a  future  contingent  event. 
It  was  shown  that  in  December  the  wife  was  well  enough  to 
leave  on  a  visit  to  her  father,  and  that  the  plaintiff  removed 
a  part  of  his  property  to  her  father's. 

In  the  absence  of  all  evidence  to  the  contrary,  these  facts 
established  the  wife's  ability  to  remove,  and,  if  so,  the  time 
for  which  plaintiff  had  permission  to  occupy  had  expired,  and 
the  defendant  had  the  right  to  enter  and  put  out  the  plain- 
tiff's goods. 

The  learned  judge  would  seem  to  have  been  of  opinion 
that  the  new  letting  was  to  terminate  at  the  will  of  the 
defendant,  and  hence  plaintiff  was  entitled  to  notice  to  quit ; 
but  such  is  not  the  proof.  The  plaintiff  was  permitted  to 
occupy  only  until  his  wife  was  well  enough  to  remove. 
(Woodfall,  228 ;  3  Hill,  90 ;  2  Sup.  U.  S.  Dig.,  257,  §  14 ; 
id.,  289,  §  56 ;  id.,  295,  §  185  ;  12  J.  R,  182  ;  Woodf.,  181.) 

Assuming  that  the  acts  and  declarations  of  the  parties 
would  justify  the  jury  in  finding  an  agreement  that  plaintiff 
might  remain  in  possession,  paying  rent,  the  question  then 
arises  whether  defendant  was  under  any  legal  obligation  tc 


184  CASES  IN  THE  SUPREME  COURT          [Dec., 

Doyle  v.  Gibbs. 

give  him  notice  to  quit  ?  The  general  rule  is  that  notice  to 
quit  is  necessary  when  the  time  at  which  the  tenancy  is  to 
terminate  is  uncertain.  Thus,  in  cases  of  tenancy  at  will, 
notice  is  indispensable.  It  seems  to  me  this  rule  has  no 
application  to  a  case  like  the  one  before  us.  The  relation  of 
landlord  and  tenant  never  existed  between  the  parties.  Cer- 
tainly not,  prior  to  the  plaintiff's  discharge,  and  the  new 
arrangement  was,  on  the  part  of  the  defendant,  a  mere  license 
to  occupy. 

In  "Woodfall's  Landlord  and  Tenant  (236)  it  i&  said  that  if 
a  tenant  whose  lease  has  expired  retains  possession  pending  a 
treaty  for  another  lease,  he  is  not  a  tenant  from  year  to  year,  but 
at  will,  so  strictly  as  that  no  notice  to  quit  is  necessary. 

In  Jackson  v.  Parkhurst  (5  J.  R.,  128)  the  facts  were 
similar  to  those  set  out  in  the  preceding  extract,  except  that 
in  this  case  the  lessor's  agent  gave  the  tenant  permission  to 
occupy  until  he  heard  from  the  lessor. 

The  agreement  in  this  case^  was  no  more  distinctly  proved 
than  in  Ballentine  v.  McDowell  (2  Scam.,  28).  It  was 
proved  in  that  case  that  defendant,  while  in  possession  under 
a  former  agreement,  had  a  conversation  with  plaintiff 's 
agent,  in  which  the  latter  desired  the  former  to  pay  a  certain 
amount  of  rent.  This  defendant  refused  to  do,  but  offered  a 
smaller  sum,  which  was  not  agreed  to,  but  defendant  con- 
tinued to  occupy.  It  was  held  the  evidence  was  insufficient 
to  establish  the  relation  of  landlord  and  tenant,  or  to  support 
an  action  for  use  and  occupation. 

In  McGee  v.  Gibson  (IB.  Munroe,  105)  it  was  held  that 
when  a  farmer  employs  a  laborer  for  a  year  at  a  stipulated 
price  per  month,  and  agrees  to  provide  him  a  house  at  two 
dollars  per  month,  payable  monthly,  the  laborer  is  a  tenant 
at  will,  and  when  he  ceases  to  labor  his  tenancy  is  deter- 
mined, and  no  notice  to  quit  is  necessary. 

I  am  of  opinion  that  the  ruling  at  the  Circuit  was  errone- 
ous upon  each  and  all  of  the  following  grounds  : 

1st.  The  plaintiff  was  not  a  tenant  holding  over,  but  a  mere 
servant,  suffered  to  remain  in  his  master's  house  after  his  time 


1871.]  OF  THE  STATE  OF  NEW  YORK.  185 

Hassan  v.  The  City  of  Rochester. 

of  service  had  ended,  and  therefore  the  relation  of  landlord 
and  tenant  never  existed  between  them. 

2d.  There  was  not  sufficient  evidence  to  justify  the  jury  in 
finding  an  agreement  to  let  the  premises  to  the  plaintiff. 

3d.  If  there  was  an  agreement  it  was  to  continue  until 
the  plaintiff's  wife  got  well,  and  that  event  occurred  before 
the  defendant  entered. 

4th.  If  there  was  a  tenancy,  it  was  not  one  requiring 
notice  to  quit  in  order  to  terminate  it. 

Enough  was  done  by  the  defendant  to  subject  him  to  an 
action  of  trespass  for  his  unlawful  interference  with  the  pro- 
perty, if  his  entry  had  not  been  justified.  (Foulder  v.  Wil- 
lougby,  8  M.  &  W.,  540.) 

The  order  refusing  a  new  trial  is  reversed,  and  a  new  trial 
granted,  costs  to  abide  the  event. 

New  trial  granted. 


WILLIAM  E.  HASSAN  et  al.  v.  THE  CITY  or  ROCHESTER  et  al.    .  . 

6     185 
65a  516 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

Whether  the  designation,  by  the  common  council  of  Rochester,  of  the  por- 
tion of  that  city  deemed  to  be  benefited  by  a  public  improvement  upon 
which  they  have  determined,  and  their  order  directing  the  assessment 
upon  all  the  owners  and  occupants  of  lands  and  houses  within  the  por- 
tion so  designated  (see  charter,  L.  1861,  §§  191,  192,  etc.),  prohibits  the 
assessors  from  omitting  from  assessment  such  parts  of  the  designated 
territory  as  they  regard  as  receiving  no  benefit,  quere. 

And  whether  the  question  may  be  raised  -in  an  action  to  have  the  tax 
declared  void,  and  to  restrain  its  collection,  the  common  council  having 
confirmed  it. 

But  §  208  of  the  charter,  which  declares  all  assessments  for  local  improve- 
ments valid,  notwithstanding  irregularity,  omission  or  error  in  the  pro- 
ceedings relating  to  the  same,  renders  the  assessments  valid  although 
>  such  omission  is  made. 

THIS  was  an  action  by  certain  citizens  and  property  owners 
of  the  city  of  Rochester  whose  property  had  been  assessed  for 
— VOL.  VI.         24 


186  CASES  IN  THE  SUPREME  COURT         [Dec., 

Hassan  v.  The  City  of  Rochester. 

the  expense  of  opening  a  street  in  that  city,  and  was  brought 
against  the  city,  its  treasurer  and  collector  of  taxes,  claiming 
to  have  the  assessment  declared  void,  a  reassessment  and  an 
injunction. 

The  complaint  set  forth  the  powers  of  the  common  council 
of  the  city  in  respect  to  improvements  of  streets  and  the  pro- 
visions of  the  city  charter  concerning  their  duties  therein, 
and  alleged  in  substance  that  the  common  council,  in  pur- 
suance of  the  charter,  had  determined  to  improve  Oak  street, 
in  said  city,  and  on  the  2d  May,  1865,  did  enact  and  publish 
an  ordinance  for  that  purpose,  by  which  it  was  substantially 
directed  that  the  whole  expense  of  the  improvement,  accord- 
ing to  estimates  made  by  the  city  surveyor,  should  be  defrayed 
by  an  assessment  upon  the  owners  of  houses  and  lands  to  be 
benefited,  and  which  specified  a  portion  of  the  city  which  the 
common  council  deemed  -would  be  benefited,  and,  after  other 
provisions  concerning  the  manner  of  payment,  proceeded  to 
direct  the  assessors  of  the  city,  as  persons  not  interested,  to 
make  an  assessment  upon  all  the  owners  and  occupants  of 
lands  and  houses  within  the  designated  portion  of  the  city 
of  the  amount  of  expense  in  proportion  as  nearly  as  might  be 
to  the  advantage  which  each  should  be  deemed  to  acquire  by 
the  making  of  the  improvement,  and  it  directed  the  assessors 
to  meet  at  a  time  and  place  specified  for  the  purpose. 

And  the  complaint  proceeded  to  state  that  the  assessors 
therein  named  did  not  follow  or  obey  the  ordinance  in  respect 
to  assessing  the  owners  of  territory  in  the  ordinance  desig- 
nated, but  omitted  from  the  assessment  a  very  large  proportion 
and  upward  of  900  feet  of  territory  fronting  on  Oak  street ; 
that  the  whole  frontage  assessed  was  6,251  feet,  and  the 
expense  per  foot  was  four  dollars  and  thirty-one  cents. 

That  in  consequence  of  such  omission  the  expense  of  such 
improvement  had  fallen  wholly  upon  the  property  assessed, 
the  burden  of  which  was  increased  thereby,  inasmuch  as  the 
expense  per  foot  in  case  the  whole  territory  was  assessed  would 
be  only  some  three  dollars  and  fifty-nine  cents  per  foot. 

That  the  plaintiff's  tax  or  assessment  was  greatly  above 


1871.]  OF  THE  STATE  OF  NEW  YORK  187 

Hassan  v.  The  City  of  Rochester. 

what  it  would  have  been  had  the  order  of  the  common  coun- 
cil been  complied  with,  and  the  regulations  of  the  charter  set 
forth,  been  followed ;  and  it  referred  to  a  schedule  annexed 
to  show  the  difference  which  the  mode  of  assessing  made 
to  each  of  the  plaintiffs. 

It  also  alleged  that  the  plaintiffs  were  informed  and  believed 
that  the  assessment  had  been  ratified  and  confirmed  by  the 
common  council. 

And  that  no  other  proceedings  were  had  by  the  common 
council,  under  the  provisions  of  said  charter  or  otherwise, 
modifying  or  in  any  degree  changing  the  terms,  conditions  or 
provisions  of  the  ordinance,  or  changing  in  any  manner  the 
territory  to  be  assessed  for  the  improvement. 

And  that  the  city  treasurer  had  issued  his  warrant  to  the 
defendant,  a  collector  appointed  by  him,  commanding  him  to 
collect  the  amounts  unpaid  upon  the  assessment,  with  interest 
and  collector's  fees ;  and  that  Moshier  was  proceeding  to  col- 
lect the  assessment  as  commanded,  and  threatened  to  sell  the 
goods  and  chattels  of  the  plaintiffs,  if  the  assessments  were 
not  paid. 

That  the  assessments  were  liens  upon  the  lands  of  the  said 
plaintiffs,  respectively,  and  affected  their  disposition  of  them. 

The  defendants  joined  issue,  asserting  the  legality  of  the 
proceedings  and  the  validity  of  the  assessment. 

Upon  the  trial  the  plaintiffs'  counsel  opened  the  case  with  a 
statement  of  the  facts  set  forth  in  the  complaint,  and  that  he 
would  prove  as  alleged ;  whereupon  the  defendants'  counsel 
moved  for  a  nonsuit,  on  the  ground  that  the  action  of  the 
assessors  and  common  council  was  conclusive,  and  could  not 
be  reviewed  in  this  action  ;  and,  for  the  purpose  of  the  motion, 
admitted  the  facts  in  the  complaint  to  be  true.  The  court 
granted  the  motion,  and  the  plaintiffs  excepted. 

The  court  ordered  that  the  case  and  exceptions  be  heard  in 
the  first  instance  at  the  General  Term,  and  continued  a  pre- 
liminary injunction  which  had  been  granted. 

Upon  hearing  at  the  General  Term,  the  court  denied  a 


188  CASES  IN  THE  SUPREME  COURT  [Dec., 

Hassan  v.  The  City  of  Rochester. 

new  trial.     An  opinion  by  Mr.  Justice  TALCOTT  was  rendered 
as  follows: 

"  TALCOTT,  J.  The  common  council  of  the  city  of  Rochester 
initiated  proceedings  under  the  revised  charter  (Laws  of  1861, 
chap.  143)  for  the  purpose  of  paving  a  part  of  Oak  street,  and 
constructing  crosswalks  and  sewers  therein.  By  section  165 
it  is  provided  that  before  the  common  council  shall  determine 
to  make  any  such  improvement,  they  shall  cause  an  estimate 
to  be  made,  and,  by  an  entry  in  their  minutes,  describe  the 
portion  or  part  of  the  city  which  they  deem  proper  to  be 
assessed  for  the  expense  of  such  improvement.  They  shall 
cause  notice  to  be  published,  specifying  such  improvement, 
the  estimated  expense  thereof,  and  the  portion  or  part  of  the 
city  to  be  assessed  for  such  expense,  and  requiring  all  persons 
interested  in  the  subject  to  attend  the  common  council  at  the 
time  appointed  in  such  notice.  At  the  time  appointed  in 
the  notice  they  shall  proceed  to  hear  the  allegations  of  the 
owners  and  occupants  of  houses  and  lots  situated  within  the 
portion  or  part  of  the  city  so  described,  and,  after  hearing 
the  same,  shall  make  such  further  order  in  respect  to  such 
improvement  as  they  shall  deem  proper.  By  section  191, 
whenever  the  common  council  shall  determine  that  the  whole 
or  any  part  of  the  expense  of  any  public  improvement,  not 
requiring  the  taking  of  any  land  by  said  city,  shall  be 
defrayed  by  an  assessment  upon  the  owners  and  occupants  of 
houses  and  lands  to  be  benefited  thereby,  they  shall  declare 
the  same  by  an  entry  in  their  minutes,  and,  after  ascertaining 
the  estimated  expense,  they  shall  declare,  by  an  entry  in  their 
minutes,  whether  the  whole,  or  what  portion  thereof,  shall 
be  assessed  on  such  owners  and  occupants,  specifying  the  sum 
to  be  assessed  and  the  portion  of  the  city  which  they  deem 
will  be  benefited  by  such  improvement.  By  section  192  they 
are  required  thereupon  further  to  make  what  is  termed  in 
section  191  a  final  ordinance,  namely,  an  order  reciting  the 
improvement  intended  to  be  made,  the  amount  of  expense 
to  be  assessed,  and  the  portion  or  part  of  the  city  on  which 
the  same  is  to  be  assessed;  and  directing  the  assessors  to 


1871.]  OF  THE  STATE  OF  NEW  YORK.  180 

Hassan  v.  The  City  of  Rochester. 

make  an  assessment  upon  all  the  owners  and  occupants  of 
lands  and  houses  within  the  portion  or  part  so  designated,  of 
the  amount  of  expense  in  proportion,  as  nearly  as  may  be, 
to  the  advantage  which  each  shall  be  deemed  to  acquire  by 
the  making  of  such  improvements,  which  order  shall  be  cer- 
tified by  the  clerk  and  delivered  to  one  of  the  assessors,  with 
the  map  or  profile  of  the  proposed  improvement.  Section  195 
directs  that  the  assessors  shall  proceed  to  make  the  assessment 
(  according  to  said  order,'  and  return  the  roll  to  the  council, 
who  shall  appoint  a  time  at  which  it  will  hear  appeals  from 
the  said  assessment.  By  section  197  the  clerk  is  required  to  pub- 
lish notice  of  the  return  of  the  assessment  to  his  office,  and  that 
the  common  council  will,  on  such  day  as  they  shall  have 
appointed,  proceed  to  hear  appeals  from  said  assessment. 
Section  198  provides  that,  on  the  day  appointed  for  that  pur- 
pose, the  common  council  shall  hear  the  allegations  and 
proofs  of  all  persons  who  may  complain  of  such  assessment, 
and  may  rectify  and  amend  the  said  assessment  list  in  whole 
or  in  part,  or  may  set  the  same  aside  and  direct  a  new  assess- 
ment, &c.,  or  may  ratify  and  confirm  the  assessment  without 
any  corrections,  or  with  such  corrections  therein,  as  they  may 
think  proper.  And  section  199  declares  that  every  assess- 
ment so  ratified  and  confirmed  by  the  common  council  shall 
be  final  and  conclusive.  The  complaint  substantially  avers 
the  proceedings  to  have  been  regular  and  according  to  the 
charter,  down  to  the  time  when  the  assessors,  entered  upon 
their  duties,  but  that  the  assessors,  instead  of  assessing  the 
expense  upon  <  all  the  owners  and  occupants  of  lands  and 
houses  within  that  portion  or  part  so  designated,'  in  point 
of  fact  omitted  to  assess  any  portion  of  the  expense  on 
upwards  of  900  feet  frontage  out  of  6,251  feet,  which  was 
the  whole  territory  designated  by  the  common  council,  and 
did  not,  as  provided  by  the  section  195,  make  the  assessment 
'  according  to  the  said  order '  of  the  council,  but  assessed 
only  a  part  of  the  persons  and  property  embraced  within  the 
purview  of  the  said  order,  by  reason  whereof  the  residue 
of  the  owners  and  occupants  are  assessed  more  than  their 


190  CASES  IN  THE  SUPREME  COURT  [Dec., 

Hassan  t>.  The  City  of  Rochester. 

due  proportion  of  the  expense  of  the  proposed  improvement. 
The  complaint  alleges  that  the  common  council  has  ratified 
and  confirmed  the  assessment,  without  in  any  manner  modi- 
fying the  order,  or  its  terms  or  provisions,  and  without  chang- 
ing in  any  mariner  the  territory  to  be  assessed  for  the 
improvement ;  that  the  plaintiffs,  who  are  some  of  the  parties 
assessed,  and  severally  the  owners  of  lands  which  are  affected 
by  the  lien  of  the  assessment,  have  applied  to  the  common 
council  to  correct  the  assessment.  That  the  council  referred 
the  matter  to  a  committee,  and  the  report  of  the  committee 
is  made  a  part  of  the  complaint.  The  report  admits  the 
error  of  the  assessors,  and  the  injustice  of  the  assessment, 
and  recommends  that  the  action  of  the  council  confirming 
the  assessment  be  reconsidered,  and  the  assessors  be  directed 
to  make  out  a  new  roll,  and  include  the  omitted  lands  in 
their  assessment.  But  the  complaint  alleges  that  the  council 
has  taken  no  action  to  modify,  correct  or  set  aside  the  assess- 
ment, and  that  the  city  treasurer  his  issued  his  warrant  to 
collect  the  unpaid  portions  of  the  assessment,  and  the  collec- 
tor is  proceeding  to  collect  the  assessment,  and  that  the 
assessment  purports  to  be  a  lien  on  the  lands  owned  by  the 
plaintiffs  respectively.  The  plaintiff  was  nonsuited  upon  the 
ground  that  the  complaint  stated  no  cause  of  action. 

"  The  answer  relies  upon  the  proceedings. 

"  The  objection  arising  out  of  the  attempt  to  unite  the 
several  parties  plaintiff  and  their  several  interests  in  one 
action  was  waived,  so  far  as  the  right  to  recover  some  form 
of  judgment  is  concerned,  by  the  omission  to  demur.  The 
objection,  that  an  action  quid  tlmet  cannot  be  maintained, 
on  the  ground  that  the  alleged  illegality  appears  on  the  face 
of  the  proceedings,  and  therefore  they  cannot  constitute  a 
cloud  upon  the  titles  of  the  plaintiffs,  does  not  apply  to  this 
case,  because  the  city  authorities  may  proceed  to  sell  the 
land  for  the  non-payment  of  the  assessments,  and  in  that  case 
the  charter  provides  that  the  certificate  of  sale  (§  104),  and 
the  lease  subsequently  to  be  executed,  shall  be  presumptive 


1871.]  OF  THE  STATE  OF  NEW  YORK.  191 

Hassan  v.  The  City  of  Rochester. 

evidence  of  the  regularity  and  validity  of  the  proceedings. 
(Atten  v.  The  City  of  Buffalo,  38  N.  Y.,  386.) 

"  I  think  the  assessment  was  irregular.  The  assessors  are 
by  the  statute  required  to  assess  according  to  the  order,  and 
the  order  directs  the  assessment  to  be  made  upon  all  the 
owners  and  occupants  within  the  designated  area.  If  the 
assessors,  can  omit  one-sixth,  they  can  omit  five-sixths,  or  if  in 
their  opinion  one  lot  owner  only  will  derive  a  benefit  from 
the  proposed  improvement,  they  may  assess  the  whole  expense 
upon  him. 

"  It  is  claimed  that  the  assessors  act  judicially  in  apportion- 
ing the  assessment.  That  is  true  as  to  the  amount  of  the 
entire  expense  to  be  assessed  against  each  owner  or  occupant, 
for  that  is  a  matter  for  them  to  determine,  but  it  is  not  true 
as  to  the  lots  to  be  embraced  in  the  assessment. 

"  The  discretion  to  judicially  determine  that  question  is  by 
the  statute  committed,  not  to  the  assessors,  but  to  the  common 
council ;  and  when  the  council  has  made  the  final  ordinance, 
designating  the  lands  upon  which  the  expense  is  to  be  assessed, 
the  statute  is  imperative  that  the  assessors  shall  assess  accord- 
ing to  the  order ;  that  is,  the  assessment  must  be  spread  over 
the  whole  territory  designated  by  the  common  council,  which 
alone  has  the  power  to  decide  as  to  the  area  which  will 
embrace  all  the  lands  deemed  to  be  benefited  by  the  proposed 
improvement,  and  which  the  assessors  cannot  either  enlarge 
or  diminish,  except  for  a  provision  of  the  statute,  to  which  I 
will  now  advert.  I  think  the  plaintiffs'  complaint  states  a 
cause  of  action.  But  at  this  point  we  are  confronted  by  a 
provision  somewhat  novel  and  extraordinary  in  a  statute 
which  authorizes  the  taking  of  private  property  for  public  use. 
The  208th  section  of  the  charter  contains  the  following  pro- 
vision, viz. :  '  And  all  assessments  and  reassessments  hereto- 
fore made,  or  that  hereafter  may  be  made,  for  local  public 
improvements,  shall  be  and  are  hereby  declared  to  be  valid 
and  effectual,  notwithstanding  any  irregularity,  omission  or 
error  in  the  proceeding  relating  to  the  same,  and  all  questions 
concerning  the  same  shall  be  determined  in  all  places  liberally 


192  CASES  IN  THE  SUPREME  COURT          [Dec., 

Hassan  v.  The  City  of  Rochester. 

to  sustain  such  proceedings,  and  with  reference  to  the  very 
right  of  the  case,  and  not  strictly.' 

"  I  have  been  greatly  surprised,  since  I  discovered  this  pro- 
vision of  the  statute,  that  no  reference  was  made  to  it  on  the 
argument  of  the  cause.  I  do  not  discover,  nor  was  it  sug- 
gested, that  it  has  been  in  any  way  repealed,  modified  or 
limited. 

"  Assuming  this  provision  to  be  in  force,  it  seems  to  me  that 
it  is  a  perfect  answer  to  the  action,  and  to  most,  if  not  all, 
similar  questions  that  may  be  made  as  to  the  legality  of  local 
assessment  in  the  city  of  Rochester.  The  case  presented  by 
the  plaintiffs  is  clearly  within  the  very  terms  of  the  act. 

"  The  facts  alleged  constitute  an  '  omission  or  error '  on  the 
part  of  the  assessors,  notwithstanding  which  the  statute 
declares  the  assessment  shall  be  deemed  to  be  valid  and  effec- 
tual. I  will  not  inquire  here  what  may  be  the  limitations  to 
be  placed  upon  the  effect  of  the  provision  I  have  quoted,  or  how 
far  the  legislature  may  go  in  this  direction.  Perhaps  the 
omission  of  all  notice  to  the  party  whose  property  is  to  be 
taken,  and  all  opportunity  on  his  part  to  be  heard,  would  be 
beyond  the  power  of  legislation,  as  not  being  '  due  process  of 
law.' 

"  But  an  this  case  the  statute  provides  for  full  and  sufficient 
notice  to  the  owners  and  occupants  who  are  assessed,  with 
ample  opportunity  for  them  to  be  heard,  and  to  introduce 
proofs  with  a  view  to  correct  or  set  aside  the  assessment,  and 
these  provisions  of  the  law  were,  for  aught  that  is  alleged  by 
the  plaintiffs,  fully  complied  with. 

"  The  result  is  that  the  citizens  of  Rochester  seem,  by  the 
208th  section  of  the  charter,  to  be,  to  a  great  extent,  at  least, 
deprived  of  the  protection  afforded  by  the  ordinary  rule  of 
law,  that  officials  who  proceed  to  take  private  property  for 
public  use  must  comply  with  the  substantial  provisions  of  the 
statute  under  the  authority  of  which  they  assume  to  act.  In 
consequence  of  the  provision  of  the  208th  section  which  I 
have  quoted,  I  think  the  nonsuit  must  be  sustained,  and 
judgment  ordered  for  the  defendants." 


1871.]  OF  THE  STATE  OF  NEW  YORK.  193 

Hassan  v.  The  City  of  Rochester. 

Motion  for  new  trial  denied,  and  judgment  ordered  for 
defendant,  with  costs. 

The  case  was  then  reargued. 

George  F.  Danforth,  for  the  plaintiffs,  contended  that  sec- 
tion 208  of  the  charter  of  the  city  of  Rochester,  if  applicable, 
was  repugnant  to  section  9,  article  8,  Constitution  of  New 
York,  restricting  "  the  power  of  assessment  in  cities,  so  as  to 
prevent  abuses  in  assessments."  He  also  cited  the  provisions 
of  the  city  charter  (L.  1861,  chap.  143,  §§  86,  191,  192),  and 
contended  that  uniformity  of  assessment  throughout  the  dis- 
trict was  essential  to  the  validity  of  the  tax,  and  that  no  por- 
tion of  the  district  could  be  exempted  ;  and  he  claimed  that 
section  208  could  apply  only  when  the  assessment  was  good 
in  substance,  citing  Ireland  v.  The  City  of  Rochester  (51 
Barb.,  414). 

W.  jb.  Cogswell,  for  the  defendant,  contended  that  the 
question  submitted  to  the  assessors  was  of  a  judicial  nature, 
and  that  their  determination  could  not  be  reviewed  collaterally 
(Swift  v.  The  City  of  Poughkeepsie,  37  N.  Y.,  511 ;  Bar- 
hydt  v.  Shepard,  35  id.,  238  ;  People  v.  Board  of  Assessors 
of  Albany,  4  id.,  154;  Foster  v.  Van  Wyck,  3  Trans.  Apps., 
196  ;  People  v.  Assessors  of  Brooklyn,  39  id.,  81)  ;  that  the 
ordinance  of  the  common  council  merely  denned  a  terri- 
tory within  which  the  assessors  should  exercise  their  judg- 
ment, and  that  an  owner  deriving  no  benefit  was  properly 
assessed  nothing,  for  that  was  his  proper  proportion ;  that 
the  city,  having  the  assessment  roll  of  the  proper  officers, 
could  not  be  enjoined.  (Livingston  v.  Hollenback,  4  Barb., 
9 ;  Van  Rensselaer  v.  Kidd,  id.,  17 ;  Bouton  v.  City  of 
Brooklyn,  15  id.,  375  ;  Susquehanna  Bank  v.  The  Supervi- 
sors of  Broome,  25  N.  Y.,  312 ;  Hasbrouck  v.  Kingston 
Board  of  Health,  3  Keyes,  481 ;  Mepeck  v.  Supervisors  of 
Columbia,  15  Barb.,  190 ;  Dodd  v.  City  of  Hartford,  25 
Conn.,  232.)  He  also  claimed  that  the  complaint  was  defec- 
tive in  not  stating  that  the  owners  and  occupants  of  the 

LANSING  —  VOL.  VL      25 


194  CASES  IN  THE  SUPREME  COURT          [Dec., 

Hassan  v.  The  City  of  Rochester. 

omitted  premises  acquired  an  advantage  by  the  improvement, 
and  cited  section  208  of  the  charter  as  a  complete  answer  to 
the  action. 

Present — MULLIN,  P.  J.,  and  TAI.COTT,  J. 

MULLIN,  P.  <J.  When  the  common  council  of  the  city  of 
Rochester  have  determined  to  cause  a  public  improvement  to 
be  made,  the  expense  of  which  should,  in  whole  or  in  part, 
be  borne  by  the  persons  benefited,  they  are  required  to 
declare  whether  the  whole  or  what  portion  of  the  expense 
shall  be  assessed  on  such  owner  or  occupants,  specifying  the 
sums  to  be  assessed,  and  the  portion  of  the  city  which  they 
deem  will  be  benefited  by  such  improvement.  (Charter  of 
1861,  §  191.) 

Section  192  provides,  among  other  things,  that  the  com- 
mon council,  after  making  the  determination  aforesaid,  make 
an  order  directing  the  assessors  to  make  an  assessment,  upon 
all  the  owners  and  occupants  of  lands  and  houses  within  the 
portion  or  part  so  designated,  of  the  amount  of  the  expense 
in  proportion  as  nearly  as  may  be  to  the  advantage  which 
each  shall  be  deemed  to  acquire  by  the  making  of  such 
improvements. 

In  the  case  before  us  the  proceedings  preceding  the  assess- 
ments are  conceded  to  be  regular.  The  error  relied  upon 
to  invalidate  the  assessment  is,  that  the  assessors  omitted  to 
assess  some  900  feet  of  land  lying  within  the  portion  of  the 
city  declared  by  the  common  council  to  be  benefited  by  such 
improvement.  The  position  of  the  plaintiff's  counsel  is, 
that  the  determination  that  a  portion  of  the  city  is  benefited 
is  a  determination  that  every  lot  of  land  within  such  portion 
is  thereby  charged  with  a  share  of  the  expense  in  proportion 
to  the  benefit  conferred. 

On  the  other  side,  it  is  insisted  that  a  determination  that  a 
portion  of  the  city  is  benefited  only  fixes  the  limits  within 
which  the  assessors  are  to  apportion  the  expense,  but  it  is 
for  the  assessors  to  determine  which  of  the  owners  witliin 


1S71.]  OF  THE  STATE  OF  NEW  YORK.  195 

Hassan  t>.  The  City  of  Rochester. 

such  limits  are  benefited,  and  if  there  are  any  who  are  not 
benefited  it  is  their  duty  to  omit  them  altogether  and  assess 
it  on  those  who  are.  If  the  plaintiffs'  construction  is  right, 
then  each  lot  within  the  prescribed  boundaries  must  bear 
some  part  of  the  expense,  whether  in  the  opinion  of  the 
assessors  they  are  actually  benefited  or  are  not.  If  the 
defendant's  construction  is  the  correct  one,  then  the  assessors 
are  to  omit  from  the  assessment  all  lots  not  deemed  by  them 
to  be  benefited.  "We  all  know  that  it  is  very  seldom,  if  ever, 
that  a  public  improvement  benefits  the  property  of  every 
owner  within  the  limits  within  which  the  great  majority  of 
owners  are  actually  and  materially  benefited.  A  sewer  may 
be  indispensible  to  the  owners  of  the  street  in  which  it  is 
laid,  but  from  the  conformation  of  the  ground  it  may  be 
impossible  for  one  or  more  owners  to  drain  into  it,  and  they 
may  have  perfect  drainage  in  a  direction  opposite  to  that 
of  the  sewer.  Can  such  owners  be  said  to  be  benefited  by 
the  sewer  2  And  if  not,  upon  what  principle  can  they  be 
charged  with  any  portion  of  the  expense  of  constructing  it  ? 

In  a  certain  sense,  all  the  inhabitants  of  a  city  or  village 
are  benefited  by  every  public  improvement  made  within  it, 
and  such  benefit  is  usually  in  proportion  to  the  proximity  of 
the  personal  property  to  the  improvement  and  the  use  he  is 
able  to  make  of  it.  But  the  benefit  of  a  sewer  in  a  street  to 
a  lot  of  land  that  is  so  far  removed  from  it,  or  is  so  situated 
that  it  cannot  drain  into  it,  is  so  small  as  to  be  incapable  of 
estimation,  and  is,  therefore,  not  liable  to  be  assessed  for  the 
expense. 

.  It  would  be  useless  formality  to  assess  upon  a  lot  a  mere 
nominal  amount  toward  the  expense  of  an  improvement,  and 
a  statute  should  not  be  so  construed  as  to  require  such  an 
assessment,  unless  its  language  admits  of  no  other  construction. 

It  was  indispensable  that  provision  should  be  made  for 
determining  the  limits  within  which  persons  should  be 
deemed  to  be  benefited  by  a  public  iinprovinent,  the  whole  or 
any  part  of  the  expense  of  which  should  be  borne  by  those 
benefited. 


196  CASES  IN  THE  SUPREME  COURT          [Dec., 

Hassan  v.  The  City  of  Rochester. 

Instead  of  leaving  that  queston  to  the  assessors,  as  is  some- 
times done,  the  legislature  has  seen  fit  to  confer  the  power 
on  the  common  council. 

But  the  determination  that  those  living  within  the  limits 
prescribed  by  the  common  council  is  not  a  determination,  nor 
was  it  intended  to  be  a  determination  that  every  lot  of  land 
within  such  limits  was  benefited  by  such  improvement. 

To  give  it  such  an  effect  would  be  to  declare  to  be  true 
what 'every  person  outside  of  the  common  council  would  not 
unfrequently  know  to  be  false  as  well  as  unjust. 

For  these  reasons,  I  am  of  the  opinion  that  the  determin- 
ation, that  a  specified  portion  of  the  city  is  benefited  by  a 
public  improvement,  is  not  and  was  not  designed  to  be  a 
determination  that  each  and  every  lot  within  such  limits  is  to 
be  deemed  benefited  by  such  improvement,  but  it  merely 
prescribes  the  boundaries  beyond  which  benefit  is  not  con- 
ferred, and  within  which  the  assessors  must  assess  the 
expenses  of  the-  improvement  upon  those  whom  they  deem 
to  be  benefited. 

The  presumption  of  law  is,  that  the  assessors  have  pro- 
perly discharged  their  duty  in  making  the  assessment  in  ques- 
tion, and  the  omission  to  assess  any  portion  of  the  premises 
within  the  limits  prescribed  by  the  common  council  is  pre- 
sumed to-  have  been  because  the  persons  or  lands  omitted 
were  not  deemed  to  be  benefited  by  the  improvement. 

It  was  incumbent  on  the  plaintiffs  to  allege  in  their  com- 
plaint and  to  prove  on  the  trial,  if  the  allegation  was  denied, 
that  the  persons  or  lots  omitted  were  not  omitted  because 
they  were  not  benefited.  But  the  complaint  contains  no 
such  allegation,  nor  has  any  such  proof  been  made.  The 
presumption  of  law,  that  the  persons  omitted  were  omitted 
because  they  were  not  benefited,  must  prevail,  and  for  that 
reason,  if  for  no  other,  the  plaintiff  was  properly  nonsuited. 

It  is  suggested,  in  the  points  of  the  defendant,  that  the 
lands  omitted  were  part  of  the  lands  set  apart  by  the  State 
for  the  use  of  the  Erie  canal,  but  there  is  no  proof  that  the 
lands  are  the  property  of  the  State. 


1871.]  OF  THE  STATE  OF  NEW  YORK  197 

Hassan  c.  The  City  of  Rochester. 

The  question,  therefore,  whether  the  property  of  the  State 
can  be  assessed  for  municipal  purposes,  does  not  arise. 

By  section  199  of  the  charter  of  1861,  it  is  declared  that 
every  assessment,  when  ratified  and  confirmed  by  the  com- 
mon council,  shall  be  final  and  conclusive. 

This  precludes  any  examination  of  the  propriety  of  the 
assessment  by  this  court  or  other  tribunal,  until  it  is  set  aside 
in  a  proceeding  to  review  it. 

If  it  is  void  for  any  cause,  the  confirmation  by  the  common 
council  cannot  make  it  valid ;  but,  unless  it  is  void,  it  must 
be  enforced. 

The  learned  counsel,  who  applied  for  a  reargument,  has 
failed  to  suggest  any  satisfactory  reason  for  holding  that  the 
provisions  of  section  208  of  the  charter,  which  declares  that 
all  assessments,  made  after  the  passage  of  the  act  of  which  it 
forms  a  part,  for  local  improvements,  shall  be  and  are  thereby 
declared  to  be  valid  and  effectual,  notwithstanding  any  irregu- 
larity, omission  or  error  in  the  proceedings  relating  to  the 
same,  does  not  apply  and  cure  all  irregularities  and  omissions 
in  the  assessment  under  consideration. 

This  is  an  assessment  for  a  local  public  improvement  made 
after  the  passage  of  the  charter ;  and  it  is,  therefore,  within 
the  very  words  of  the  section.  If  it  does  not  apply  to  this 
assessment,  and  cure  all  irregularities,  and  omissions,  and 
errors  in  it,  then  it  is  senseless  and  unmeaning. 

The  counsel  for  the  plaintiff  assumed  that  both  the  judges 
who  heard  the  argument  on  the  appeal  concurred  in  the  con- 
clusion arrived  at  by  Judge  Talcott,  that  a  determination  of 
the  common  council  that  a  portion  of  the  city  was  benefited 
by  the  improvement,  subjected  every  lot  within  that  portion 
to  assessment  This  is  a  mistake  I  did  not  concur  in  that 
proposition,  but  did  in  regard  to  the  effect  of  section  208. 

The  motion  for  a  reargument  was  denied,  with  ten  dollars 
costs. 


198  CASES  IK  THE  SUPREME  COURT           [Dee, 

Tifft  v.  Phoenix  Mutual  Life  Insurance  Co. 


JOSEPH  C.  TIFFT,  Respondent,  v.  THE  PHCENLS:  MUTUAL  LIFE 
INSURANCE  COMPANY,  Appellant. 

(GENERAL  TERM,  FOUR™  DEPARTMENT,  DECEMBER,  1871.) 

A  life  insurance  company's  agent  who  had  authority  to  solicit  and  make 
contracts  for  its  insurances  agreed  that  his  company  would  insure 
the  plaintiff  by  a  policy  containing  special  provisions  for  refunding  the 
money  paid  for  premiums,  and  received  the  plaintiff's  note  in  part  pay- 
ment ;  the  company  tendered  a  policy  without  the  provision,  which  the 
plaintiff  refused.  Held,  that  the  transaction  did  not  constitute  a  contract 
between  the  plaintiff  and  the  company. 

Also,  that  the  plaintiff  could  recover  from  the  company  the  amount  of  his 
note  and  interest,  which  he  had  paid  to  a  bonafide  holder,  the  transferee 
of  the  company. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment  for 
the  plaintiff  upon  the  verdict  of  a  jury,  and  an  order  refusing 
a  new  trial.  The  facts  are  stated  in  the  opinion. 

Wynn  &  Porter,  for  the  appellant,  cited  Nixon  v.  Hyserolt 
(5  Johns.  R.,  58) ;  Sanford  v.  Hardy  (23  Wend.,  267) ; 
Stephenson  v.  N.  Y.  and  Harlem  R.  R.  (2  Duer,  341) ;.  Tkur- 
man  v.  Wells  (18  Barb.,  500). 

D.  O^Brien,  for  the  respondent,  cited  Yalten  v.  The  Nat. 
Fund  Life  Ins.  Co.  (20  IS".  Y.,  32) ;  Devendorfv.  JSeardsley 
(23  Barb.,  657) ;  Bennett  v.  Judson  (21 K  Y.,  238) ;  Elwell  v. 
Chamberlain  (31  id.,  611). 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  J J. 

MULLTN,  P.  J.  This  action  was  brought  to  recover  of  the 
defendant,  a  life  insurance  company  incorporated  in  the  State 
of  Connecticut,  and  doing  business  in  this  State  in  conformity 
to  the  laws  of  State  prescribing  the  conditions  on  which 
foreign  insurance  companies  are  permitted  to  do  business  in  this 
State,  to  recover  the  amount  of  a  premium  note  given  by  the 
plaintiff  to  defendant's  agent  under  the  following  circum- 
stances, as  claimed  by  the  plaintiff,  viz. :  David  W.  Bartlett 


1871.]  OP  THE  STATE  OF  NEW  YORK.  199 

Tifft  v.  Phoenix  Mutual  Life  Insurance  Co. 

of  Watertown,  in  the  county  of  Jefferson,  was  defendant's 
agent  for  the  purpose  of  soliciting  applications  for  life  insur- 
ance in  said  county,  and  for  the  purpose  of  making  contracts 
for  policies  of  insurance,  delivering  policies,  and  receiving 
premiums  in  cash  or  notes,  as  he  should  deem  most  advisable. 

That  on  or  about  the  22d  February,  1868,  said  agent  soli- 
cited plaintiff  to  apply  for  insurance  on  his  life,  in  said  com- 
pany, and,  after  some  negotiation,  it  was  agreed  that  plaintiff 
should  pay  to  said  agent  $125  in  cash,  and  give  him  his 
(plaintiff's)  note  for  $120,  yearly,  during  his  life,  and  in  con- 
sideration thereof  said  company  would  insure  plaintiff's  life 
for  the  term  of  his  natural  life  to  the  amount  of  $5,000,  and 
if,  at  the  end  of  three  years,  the  plaintiff  desired  to  terminate 
the  policy,  the  defendant  would  do  so,  and  repay  to  him  the 
amount  he  should  then  have  paid,  without  interest ;  and  it 
was  further  agreed  that  the  provision  or  the  right  to  termi- 
nate the  policy,  and  that  the  defendant  would,  if  terminated  at 
the  end  of  three  years,  repay  the  premium  the  plaintiff  should 
then  have  paid  to  the  defendant,  without  interest,  should  be 
inserted  in  the  policy. 

In  a  few  days  after  this  arrangement  was  made,  an  agent 
of  defendant  offered  to  plaintiff  a  policy  of  insurance  on  his 
life,  but  it  did  not  contain  the  provision  as  to  the  right  of 
plaintiff  to  terminate  and  the  obligation  of  defendant  to  repay, 
and  for  that  reason  the  plaintiff  refused  to  receive  it,  and 
never  has  accepted  said  policy,  nor  did  it  ever  become  a  bind- 
ing agreement  between  the  parties. 

The  defendant  insisted  and  gave  evidence  tending  to  prove 
that  the  representation  made  by  the  agent  to  the  plaintiff  was 
that,  at  the  end  of  three  years,  if  the  plaintiff  desired  it,  the 
defendant  would  cancel  the  first  policy  and  issue  a  paid-up 
policy  for  the  amount  of  the  premiums  paid,  payable  at  plain- 
tiff's death,  and  defendant  denied  that  an  agreement  that  the 
provision  in  reference  to  terminating  the  policy  and  repaying 
the  premium  was  ever  made. 

The  note  given  by  the  plaintiff  to  defendant's  agent  for 
part  of  the  premium  was  transferred  soon  after  it  was  given 


200  CASES  IN  THE  SUPREME  COURT          [Dec., 

Tifft  v.  Phoenix  Mutual  Life  Insurance  Co. 

to  a  bona  fide  holder,  and  at  maturity  was  paid  by  the 
plaintiff. 

Five  witnesses  were  called  on  the  part  of  the  plaintiff. 
The  plaintiff  and  his  daughter  testify  to  the  agreement  that 
the  policy  should  contain  the  clause  that  plaintiff,  at  his  elec- 
tion, at  the  end  of  three  years,  might  relinquish  the  policy, 
and  the  defendant  would  repay  the  amount  paid.  The  plain- 
tiff's wife  and  one  Tifft  testify  that  there  was  an  agreement 
that  the  money  paid  by  plaintiff  should  be  returned  at  the 
end  of  three  years,  if  plaintiff  elected  to  have  it. 

The  agent,  Bartlett,  is  the  only  witness  on  the  part  of  the 
defence,  who  testified  as  to  what  occurred  at  the  time  the 
application  was  made,  note  given  and  money  paid.  He  denies 
that  there  was  any  such  agreement  made  as  was  testified  to 
by  plaintiff's  witnesses,  and  says  the  only  agreement  made 
was  the  one  contained  in  the  policy,  and  the  only  representa- 
tion made  by  him  was  that,  at  the  end  of  three  years,  if  plain- 
tiff desired  it,  he  could  relinquish  his  policy  and  receive  a 
paid-up  policy  for  a  part  of  the  amount  paid  by  him. 

The  jury  found  a  verdict  for  the  plaintiff  for  the  amount  of 
the  note  and  interest. 

The  defendant  moved,  on  the  judge's  minutes,  for  a  new 
trial  and  from  the  judgment  entered,  and  from  the  order 
refusing  a  new  trial  the  defendant  appealed. 

The  transaction  between  the  plaintiff  and  Bartlett,  the 
agent  of  defendant,  at  the  time  the  premium  was  paid  and 
plaintiff's  application  taken,  did  not  make  a  contract  that 
bound  the  defendant.  The  agent  had  no  power  to  bind  it  by 
an  agreement  that  any  provisions  other  than  those  adopted 
by  the  company  should  be  inserted  in  its  policy.  All  that  the 
agent  could  do  was  to  receive  the  application  of  the  plaintiff, 
and  the  premium  required  by  the  rules  of  the  company,  and 
transmit  them  to  the  defendant,  with  notice  that  he  and  the 
plaintiff  had  agreed  that  a  provision  should  be  inserted  in  it 
allowing  him  to  surrender  his  policy  at  the  end  of  three 
years,  and  that  the  company  would  repay  the  premium  paid 
by  him.  'The  defendant  was  at  liberty  to  accept  or  reject  this 


1871.]  OF  THE  STATE  OF  NEW  YORK.  201 

Perry  v.  Lorillard  Fire  Insurance  Co. 

proposition,  as  it  was  but  a  proposition.  If  it  declined  to 
insert  the  provision  in  the  policy,  the  arrangement  as  to  the 
insurance  was  at  an  end,  and  the  plaintiff  was  entitled  to 
have  his  note  and  money  back ;  and,  if  the  defendant  refused 
to  deliver  them  on  demand,  or  should  have  transferred  the 
note  to  a  bona,  fide  holder,  it  would  be  liable  for  the  amount 
thereof.  But  if,  as  is  probable  upon  the  face  of  the  transac- 
tion, that  the  agent  never  communicated  to  the  defendant 
that  the  plaintiff  desired  the  provision  as  to  cancellation  and 
repayment  inserted  in  the  policy,  and  it  issued  a  policy  with- 
out such  provision,  it  was  for  the  plaintiff  to  say  whether  he 
would  accept  it.  If  he  refused,  as  it  is  proved  he  did,  there 
was  no  contract  of  insurance  effected,  and  the  plaintiff  was 
entitled  to  a  return  of  his  money  and  note. 

The  questions  in  the  case  were  questions  of  fact,  decided  by 
the  jury  upon  conflicting  evidence,  and  the  verdict  cannot  be 
disturbed.  The  weight  of  evidence  is  with  the  verdict  and 
not  against  it. 

If  the  agent  was  acting  honestly  with  the  plaintiff,  and  tes- 
tified truly  on  the  trial,  and  the  plaintiff  and  his  witnesses 
also  told  the  truth,  there  was  an  honest  mistake  on  both  sides ; 
the  plaintiff  supposing  that  he  was  entitled  to  rescind  and  be 
repaid,  the  defendant  supposing  that  the  only  right  plaintiff 
had  was  to  surrender  and  receive  a  paid-up  policy.  This  was 
the  mistake  the  court  referred  to  in  his  charge,  and,  thus 
understood,  the  charge  was  correct. 

The  judgment  and  order  must  be  affirmed. 


CHAHNCEY  PERKY  v.  THE  LORILLABD  FIEE  INSURANCE  Co.       

6    201 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.)       eia  214 

An  assignment  in  bankruptcy  (§  14)  works  a  change  of  title  to  real  pro- 
perty, within  the  condition  in  an  insurance  policy  that  a  sale  or  transfen 
or  change  in  title  or  possession,  by  legal  process,  judicial  decree,  or  vol 
untary  transfer  or  conveyance,  shall  render  the  policy  void. 

LANSING — VOL.  VI.          26 


202  CASES  IN  THE  SUPREME  COURT          [Dec., 

Perry  v.  Lorillard  Fire  Insurance  Co. 

THIS  was  a  motion  by  the  plaintiff  for  a  new  trial  upon  a 
case  and  exceptions,  ordered  to  be  heard  in  the  first  instance 
at  the  General  Term. 

The  facts  are  stated  in  the  opinion. 

G.  F.  Danfortk,  for  the  plaintiff,  cited  3  Pars,  on  Con., 
472,  480,  488  ;  1  B.  &  A.,  593  ;  Ontario  Bank  v.  Mumford 
(2  Barb.  Oh.,  596) ;  4  Nat.  Bank  Reg.,  110  ;  2  Sweeney,  475 
10  Law  Reg.  (N.  S.),  333;  Copeland  v.  Stevens  (I  B.  &  A., 
592) ;  Hitchcock  v.  N.  W.  Ins.  Co.  (26  K  Y.,  68 ;  2  Am. 
Lead.  Cases,  1  ed.,  316) ;  Wilson  v.  Hill  (3  Mete.,  70) ;  Strong 
v.  Manf.  Ins.  Co.  (10  Pick.,  40) ;  Adams  v.  Rockingham 
Mu.  Ins.  Co.  (29  Me.,  292  ;  6  Gush.,  342). 

W.  F.  Cogswell,  for  the  defendant,  cited  Lappin  v.  The 
Charter  Oak  Ins.  Co.  (58  Barb.,  325  ;  43  N.  Y.,  389) ;  Gros- 
venor  v.  The  Atlantic  Fire  Ins.  Co.  (17  N.  Y.,  391). 

Present — MTJLLIN,  P.  J. ;   JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  This  action  was  brought  on  a  policy  of 
insurance  issued  by  the  defendant  to  one  James  Cochrane, 
insuring  him  against  loss  by  fire  upon  a  brick  dwelling-house 
in  the  city  of  Rochester,  for  one  year  from  the  14th  Decem- 
ber, 1869.  The  policy  provided  that  the  loss,  if  any,  should 
be  paid  to  the  plaintiff. 

The  policy  contained  the  condition  that  if  the  property 
"  shall  be  sold  or  transferred,  or  any  change  take  place  in  the 
title  or  possession,  whether  by  legal  process  or  judicial  decree, 
or  voluntary  transfer  or  conveyance,  then,  and  in  every  such 
case,  this  policy  shall  be  void." 

On  the  23d  May,  1870,  the  building  insured  was  damaged 
by  fire  to  the  amount  of  $2,486.75. 

In  January,  1870,  proceedings  in  bankruptcy  were  insti- 
tuted against  Cochrane.  On  the  first  of  April  following,  he 
was  decreed  a  bankrupt,  and  on  the  30th  of  the  same  month 
the  register  executed  the  usual  assignment  in  bankruptcy, 


1871.]  OF  THE  STATE  OF  NEW  YORK.  203 

Perry  v.  Lorillard  Fire  Insurance  Co. 

which  was  on  the  same  day  approved  by  the  district  judge, 
and  by  it  he  assigned  to  the  assignee  all  the  estate,  real  and 
personal,  of  the  bankrupt,  including  all  the  property,  of  what- 
ever kind,  of  which  he  was  possessed,  or  in  which  he  was 
interested  or  entitled  to  have  on  the  26th  January,  1870. 

Section  14  of  the  bankrupt  law  provides  that,  upon  the 
execution  of  the  assignment  by  the  judge  or  register,  it  shall 
relate  back  to  the  commencement  of  the  proceedings  in 
bankruptcy,  and  thereupon,  by  operation  of  law,  the  title  to 
all  such  property  and  estate,  both  real  and  personal,  shall  vest 
in  said  assignee. 

The  same  section  further  provides  that  all  rights  in  equity, 
choses  in  action,  patent  and  patent  rights,  all  debts  due  the 
bankrupt,  and  all  liens  and  securities  therefor,  and  all  his  rights 
of  action  for  property  or  estate,  real  or  personal,  and  for  any 
cause  of  action  which  the  bankrupt  had  against  any  person 
arising  upon  contract  or  from  the  unlawful  taking  or  detention, 
or  for  injury  to  his  property,  and  all  rights  of  redeeming  such 
property  or  estate,  with  the  like  right,  title,  power  and 
authority  to  sell,  manage,  dispose  of,  sue  for  and  recover,  or 
defend  the  same  as  the  bankrupt  might  or  could  have  had,  if 
no  assignment  had  been  made,  shall,  in  virtue  of  the  adjudi- 
cation in  bankruptcy  and  the  appointment  of  his  assignee,  be 
at  once  vested  in  such  assignee. 

When  the  proceedings  in  bankruptcy  against  Cochrane,  to 
and  including  the  assignment  to  the  assignee,  were  proved,  the 
defendant's  counsel  moved  for  a  nonsuit  on  the  ground  that 
by  such  proceedings  and  assignment  a  change  had  taken  place 
in  the  title  to  the  property  insured,  by  judicial  decree,  and 
that  thereupon  the  policy  became  and  was  void,  and  no  action 
could  be  maintained  thereon. 

The  court  granted  the  motion  and  nonsuited  the  plaintiff. 

The  plaintiff  now  moves  to  set  aside  the  nonsuit  and  for  a 
new  trial. 

The  question  for  our  consideration  then  is,  has  there  been, 
since  the  issuing  of  the  policy  and  before  the  injury  of  the 
property  insured  by  fire,  a  change  in  the  title  to  that  property 


204  CASES  IN  THE  SUPREME  COURT  [Dec., 

Perry  v.  Lorillard  Fire  Insurance  Co. 

by  legal  process,  judicial  decree,  or  voluntary  transfer  or  con- 
veyance ? 

The  proceedings  in  bankruptcy  were  not  instituted  by  the 
insured,  but  against  him  by  his  creditors ;  the  change  of  title 
resulting  from  those  proceedings  was  not  voluntary,  but  com- 
pulsory, nor  was  the  change  of  title  effected  by  legal  process. 

Jacobs,  in  his  Law  Dictionary,  says :  "process "  has  two 
significations.  First,  it  is  largely  taken  for  all  the  proceed- 
ings in  any  action  or  prosecution,  real  or  personal,  civil  or 
criminal,  from  the  beginning  to  the  end ;  secondly,  that  is 
termed  the  process  by  which  a  man  is  called  into  any  tempo- 
ral court,  because  it  is  the  beginning  or  principal  part  thereof, 
by  which  the  rest  is  directed  or  taken ;  strictly,  it  is  the  pro- 
ceeding after  the  original,  before  judgment. 

In  the  People  v.  Nemns  (1  Hill,  154,  169),  it  is  said  that 
the  word  "process"  usually  signifies  a  writ  or  warrant,  but 
it  has  also  the  meaning  given  to  it  by  Jacobs. 

If  it  could  receive  the  meaning  first  given  to  it  by  Jacobs, 
the  proceedings  in  bankruptcy  would  be  legal  process,  and 
the  change  of  title  might  be  held  to  be  effected  thereby. 

But  it  seems  to  me  that  the  term  legal  process,  used  in  the 
policy,  means  what  is  known  as  a  writ,  and  as  attachment  or 
execution  on  the  writs  usually  employed  to  effect  a  change  of 
title  to  property,  they  are,  or  are  amongst,  the  processes  con- 
templated by  the  policy. 

The  bankrupt  law  provides  no  writ,  nor  anything  in  the 
nature  of  a  writ,  by  which  the  title  to  the  bankrupt  property 
can  be  changed.  But  if  the  term,  legal  process,  was  to  be  con- 
strued as  meaning  the  whole  of  a  proceeding  in  a  court  of 
law,  then  the  title  would  be  changed  by  legal  process. 

But  that  the  words  were  not  intended  to  be  used  in  the 
sense  of  the  whole  proceeding  in  an  action,  is  obvious  from 
the  use  in  the  policy  of  the  words  "judicial  decree  "  that 
immediately  follow. 

The  words,  "legal  process,"  mean  all  the  proceedings  in  an 
action  or  proceeding ;  they  would  necessarily  embrace  the 
decree  which  ordinarily  includes  the  proceedings. 


1871.]          OF  THE  STATE  OF  NEW  YORK.  205 

» 

Perry  v.  Lorillard  Fire  Insurance  Co. 

By  including  the  word  decree  in  the  condition,  it  is  obvious 
that  the  framers  of  it  did  not  understand  that  it  was  covered 
by  the  word  "  process." 

The  inquiry  then  is  reduced  to  this,  was  the  title  changed 
by  a  judicial  decree  ? 

By  the  bankrupt  law,  there  can  be  no  appointment  of  an 
assignee,  nor  conveyance  to  him,  until  the  adjudication  that 
the  person  proceeded  against  is  a  bankrupt;  that  adjudica- 
tion must  precede  any  change  of  title  of  the  bankrupt's 
property. 

Whether  the  property  becomes  vested  in  the  assignee  by 
operation  of  law  or  by  the  conveyance  to  the  assignee  by  the 
judge  or  register,  one  thing  is  certain,  it  does  not  vest  until 
after  the  conveyance  to  the  assignee  is  actually  made. 

All  the  proceedings  in  relation  to  the  transfer  of  the  bank- 
rupt's property,  result  from  and  carry  into  effect  the  decree 
of  bankruptcy,  in  the  same  manner  that  the  title  to  real 
estate  mortgaged  is  changed  by  a  decree  of  foreclosure. 

The  plaintiff's  counsel  insists  that  the  proceedings  in  bank- 
ruptcy produce  no  change  in  the  title  of  the  bankrupt  to 
his  property.  The  act  declares,  in  the  most  clear  and  une- 
quivocal terms,  that  the  title  of  the  bankrupt  to  all  his  estate, 
real  and  personal,  shall  vest  in  the  assignee.  No  color  of 
title  is  left  in  the  bankrupt.  How  then  can  it  be  said  that 
the  proceedings  work  no  change  in  the  title  ? 

After  the  conveyance  to  the  assignee,  the  bankrupt  has  no 
title  to  the  property  that  he  could  convey  to  another.  He 
had  it  before  the  assignment,  and  would  have  had  it  still,  had 
it  not  been  changed. 

It  is  said  in  2  Parsons  on  Cont,  624,  that  bankruptcy 
operates  not  so  minute  as  a  grant  or  transfer  as  a  sequestra- 
tion or  forfeiture.  And  it  is  therefore  insisted  that  there 
being  no  grant  or  transfer  the  title  is  not  changed. 

It  matters  very  little  what  name  is  given  to  the  result 
produced  by  the  adjudication  in  bankruptcy  and  assignment 
to  the  assignee,  whether  it  has  the  effect  of  a  grant  or  is  a 
sequestration ;  the  fact  is  the  title  of  the  bankrupt  is  divested 


206  CASES  IN  THE  SUPREME  COURT         [Dec., 

Lewis  «.  Rose. 

and  vested  in  the  assignee.  If  this  is  not  a  change  of  title, 
it  would  be  difficult  to  find  a  name  for  it. 

It  is  doubtless  true  that  the  assignee  has  an  equitable 
interest  in  the  property,  which  may  be  insurable  as  such,  but 
it  would  not  be  insurable  under  a  policy  obtained  upon  a 
representation  that  the  insured  had  the  title  to  the  property 
embraced  in  the  policy.  Such  an  interest  remaining  in  a 
bankrupt  cannot  prevent  the  adjudication,  and  the  assignment 
under  it,  from  producing  a  change  of  title. 

We  cannot  disregard  the  plain  provisions  of  the  bankrupt 
law  and  follow  the  decision  of  a  court,  however  respectable, 
that  virtually  overrides  the  act  and  nullifies  its  provisions. 

We  are  constrained  to  hold  that  the  assignment  in  bank, 
ruptcy  changed  the  title  to  the  property  insured,  and  was  for 
that  reason  a  breach  of  the  condition  of  the  policy,  which  is 
therefore  void.  The  motion  for  a  new  trial  is  denied. 


JACOB  LEWIS,  Appellant,  v.  JONATHAN  ROSE,  Respondent. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

Where  a  justice  of  the  peace  mistakenly  determines  that  an  offence  has 

been  committed  and  that  there  is  probable  cause  against  the  accused, 

and  issues  his  warrant  for  arrest,  an  action  for  false  imprisonment  will 

not  lie  for  the  error  against  the  complainant 
A  warrant  is  sufficient  protection  if  it  charges  a  crime,  although  in  general 

terms. 
Mere  delivery  of  a  warrant,  believed  to  be  valid,  by  the  complainant,  to 

the  officer,  by  whom  it  is  executed,  will  not  subject  to  an  action  for  false 

imprisonment. 
Otherwise  where  the  warrant  is  delivered  with  directions  to  arrest,  if  it  is 

void. 

THIS  was  an  appeal  by  the  plaintiff  from  a  judgment  for 
defendant,  entered  upon  an  order  denying  a -motion  for  a 
judgment  upon  a  verdict  of  a  jury. 

Upon  the  trial  the  court  directed  a  verdict  for  the  plaintiff, 


1871.]  OF  THE  STATE  OF  NEW  YORK.  207 


Lewis  v.  Rose. 


and  reserved  the  case  for  further  hearing,  with  leave  to  the 
plaintiff  to  move  for  judgment  upon  the  verdict,  and  to  the 
defendant  to  move  for  a  nonsuit. 

Afterward  the  plaintiff  moved  the  court  at  Special  Term 
for  judgment,  and  the  defendant  for  a  nonsuit.  The  plaintiff's 
motion  was  denied  and  a  nonsuit  granted,  with  directions 
that  the  verdict  be  set  aside  and  a  judgment  of  nonsuit 
entered ;  from  this  order  the  plaintiff  appealed.  The  facts 
are  stated  in  the  opinion. 

Richardson  &  Adams,  for  the  appellants,  cited  Burns  v. 
Erben  (40  K  Y.,  463) ;  Hopkins  v.  Grove  (7  C.  &  P.,  573) ; 
3  K.  S.,  5th  ed.,  972,  973,  §§  8,  9,  10 ;  id.,  1028,  §  19 ;  The 
People  v.  Chase  (16  Barb.,  495,  498) ;  March  v.  The  People 
(7  id.,  391,  393,  421) ;  Lambert  v.  The  People  (9  Cav., 
578-625);  1  Chit.  Or.  L.,  169;  3  Dew.,  91 ;  13  Wend.,  317; 
3  R.  S.,  5th  ed.,  993,  §  3 ;  16  Barb.,  498-500 ;  Wilson  v. 
Robinson  (6  How.,  110) ;  Lansing  v.  Case  (4  N.  Y.  Leg. 
Obs.,  221) ;  Curry  v.  Pringle  (11  J.  R.,  444) ;  Von  Latham 
v.  Libby  (28  Barb.,  339) ;  17  Abb.,  237 ;  Campbell  v.  Ewart 
(7  How.,  399) ;  Wilson  v.  Robinson  (6  How.,  110) ;  Green  v. 
Rumsey  (2  Wend.,  611) ;  Camput  v.  Fulton  (13  Abb.,  276)  ; 
Brown  v  Chantry  (39  Barb.,  253) ;  CastU  v.  Duryea  (32 
id.,  480) ;  2  Keyes,  169 ;  30  How.  Pr.,  591 ;  Binsse  v.  Wood 
(37  N.  Y.,  526). 

Pomeroy  &  Southworth,  for  the  respondents,  cited  3  R*  S., 
5th  ed.,  973,  §§  8,  10 ;  6  How.,  110 ;  7  id.,  339 ;  2  Blackford, 
259 ;  3  Espinasse,  165  ;'  Von  Latham  v.  Libby  (38  Barb.,  339). 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  In  January,  1869,  the  defendant  applied, 
upon  oath,  to  a  justice  of  the  peace  of  Rome,  in  the  county 
of  Oneida,  for  a  warrant  to  arrest  the  plaintiff  for  conspiring 
with  J.  A.  White  and  Martin  A.  Cook  to  fraudulently  pro- 
cure the  decree  of  the  surrogate  of  Oneida  county  directing 


208  CASES  IN  THE  SUPREME  COURT 

Lewis  v.  Rose. 


the  payment  of  a  judgment  in  favor  of  the  plaintiff  against 
Wilgus,  deceased,  and  wlrlch  judgment  the  said  White  and 
Cook,  administrators  of  said  WiJgus,  did  fraudulently  pay  to 
the  said  plaintiff,  after  said  decree,  and  which  he,  said  Lewis, 
did  fraudulently  receive,  being  the  sum  of  $11,000.  The 
said  justice  issued  a  warrant  for  the  arrest  of  said  plaintiff, 
White  and  Martin,  and  the  same  was  delivered  to  said 
defendant,  who  delivered  the  same  to  a  constable,  with  direc- 
tions to  arrest  the  plaintiff;  and  the  said  constable  did,  by 
virtue  thereof,  arrest  the  said  plaintiff  in  Carthage,  Jefferson 
county,  and  carried  him  before  said  justice,  who  delayed  pro- 
ceedings on  said  warrant  for  some  days,  at  the  expiration  of 
which  time  the  said  plaintiff  gave  his  own  recognizance  to 
appear  at  the  next  Court  of  Oyer  and  Terminer  to  be  held  in 
said  county  of  Oneida,  and  he  was  thereupon  discharged.  He 
did  appear  at  the  said  next  court  of  Oyer  and  Terminer,  and 
the  grand  jury  not  finding  any  bill  against  the  plaintiff  he 
was  discharged. 

The  complaint  contains  allegations  that  would  either  sus- 
tain an  action  for  malicious  prosecution  or  false  imprisonment. 
The  answer  denies  the  complaint,  and  insists  upon  the  legality 
of  the  warrant,  and  of  the  arrest  by  virtue  of  it,  and,  as  a  reason 
why  a  complaint  was  not  made  to  the  grand  jury,  that  the  dis- 
trict attorney  told  defendant  that  plaintiff  had  paid  or  recovered 
the  debt,  and  that,  in  good  faith,  he  believed  the  plaintiff 
guilty  of  the  offence,  as  it  had  been  proved  against  him  on  a 
trial  before  a  referee,  and  so  the  referee  found. 

On  the  trial  the  plaintiff's  counsel  disclaimed  the  intention 
to  further  prosecute  the  action  as  one  for  malicious  prosecu- 
tion, but  elected  to  treat  it  as  orle  for  false  imprisonment. 

By  section  8,  title  6,  chapter  1,  part  4  of  the  Revised 
Statutes,  a  conspiracy  to  cheat  or  defraud  a  person  of  any  pro- 
perty by  means  which  are  in  themselves  criminal,  or  by  any 
means  which,  if  executed,  would  amount  to  a  cheat,  is 
declared  to  be  a  misdemeanor.  The  means  charged  are 
obtaining  a  false  decree,  and  that,  by  virtue  of  such  false  judg- 
ment, the  money  was  obtained  of  the  estate  of  Wilgus.  An 


1871.]  OF  THE  STATE  OF  NEW  YORK.  209 


Lewis  «.  Rose. 


overt  act  in  pursuance  of  the  conspiracy  was  thus  alleged  and 
proved. 

It  is  not  material  to  consider  whether  the  facts  sworn  to 
before  the  justice  were,  in  law,  sufficient  to  establish  the  crime 
charged.  It  is  enough  that  the  justice  so  held,  in  order  to 
protect  the  defendant.  The  justice  was  the  officer  authorized 
by  law  to  entertain  complaints  for  the  violation  of  the  crimi- 
nal law,  and  it  was  his  province  and  duty  to  ascertain  whether 
a  crime  was  proved  to  have  been  committed,  and,  if  it  was, 
to  issue  his  warrant  for  the  arrest  of  the  offender. 

The  complainant  is  not  answerable  if  the  justice  made  a 
mistake  in  determining  the  question  whether  a  crime  had 
been  committed,  and  whether  there  was  probable  cause  to 
believe  the  person  charged  to  be  the  one  who  committed  it. 

The  warrant  recites  the  complaint  for  conspiring  to  obtain 
by  fraud  the  decree  from  the  surrogate,  and  that  the  admin- 
istrators did  by  fraud  pay,  and  the  plaintiff  did  by  fraud 
receive  moneys  from  the  estate  of  Wilgus  in  fraud  of  certain 
creditors  of  said  Wilgus,  and  commands  the  plaintiff's  arrest. 

The  warrant  is  valid  on  its  face.  It  may  be  that  it  should 
have  contained  a  more  full  description  of  the  crime  imputed 
to  the  plaintiff.  But  it  is  enough  if  a  crime  is  charged, 
although  it  be  charged  in  general  terms. 

If  the  warrant  was  void  and  the  defendant  had  directed 
the  plaintiff's  arrest,  he  might  be  liable.  But  merely  deliver 
ing  a  warrant,  believed  to  be  valid,  to  an  officer  to  execute  it, 
does  not  render  the  person  thus  delivering  it  liable  for  false 
imprisonment. 

The  plaintiff  was  properly  nonsuited.  The  judgment  must 
therefore,  be  affirmed. 

Judgment  affirmed. 

LANSING — VOL.  VL  27 


210  CASES  IN  THE  SUPREME  COURT          [Dec., 

Clarke  v.  Rannie. 

TRACY  S.  CLAEKE,  Respondent,  v.  JOHN  RANNIE,  Appellant. 
(GENERAL  TERM,  FOTJKTH  DEPARTMENT,  DECEMBER,  1871.) 

Crops  sown  during  a  lease,  which  cannot  mature  until  after  the  term,  may 
not  then  be  gathered  by  the  lessee. 

Evidence  that  one  acting  as  the  lessor's  agent  to  receive  the  avails  of  a 
portion  of  the  crops  due  from  the  tenant  under  the  lease,  had  permitted 
the  lessee  to  sow  the  crop,  will  not  support  the  lessee's  claim  to  reap 
after  the  term. 

Nor  will  the  lessee's  testimony  that  he  had  informed  the  lessor,  upon  inquiry 
at  the  time  of  sowing,  what  and  where  he  intended  to  sow,  support  a 
verdict  against  the  lessor  for  the  crop  on  his  refusal  to  allow  the  lessee  to 
gather  it  after  the  term,  and  especially  if  contradicted  by  other  testimony. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment 
entered  on  a  verdict  for  the  plaintiff,  and  from  an  order  deny- 
ing a  new  trial.  The  facts  are  stated  in  the  opinion. 

J.  Peddle,  for  the  appellant. 

E.  G.  Lapham,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  On  the  2d  March,  1864,  A.  P.  Crandall 
leased  to  the  plaintiff  his  farm  in  the  town  of  Palmyra,  in 
the  county  of  Wayne,  for  a  term  of  three  years  from  the 
first  day  of  April,  of  the  same  year,  and  longer  if  the  parties 
could  agree. 

By  the  lease  the  lessee  was  to  have  one-half  of  the  avails 
of  the  crops. 

The  plaintiff  went  into  possession  under  said  lease  in  April, 
1864,  and  remained  in  possession  until  the  last  of  March, 
1867. 

The  lessor,  in  December,  1864,  sold  and  conveyed  the  said 
farm  to  the  defendant,  subject  to  the  lease  to  the  plaintiff. 

The  defendant  did  not  reside  in  the  vicinity  of  the  farm, 
and  he  appointed  Crandall,  after  he,  defendant,  bought  the 
farm,  to  receive  his,  defendant's,  share  of  the  avails  of  the 


mi.]    OF  THE  STATE  OF  NEW  YORK.      211 

Clarke  v.  Rannie. 

crops,  Crandall  continued  thus  to  act  for  defendant  until  in 
the  spring  of  1866,  when  defendant  appointed  one  Sherman 
as  his  agent,  to  receive  his  share  of  the  avails  of  the  crops. 

In  the  fall  of  1866,  the  plaintiff  sowed  forty  acres  of  wheat 
on  said  farm,  which  he  claimed  the  right  to  harvest  in  the 
summer  of  1867,  but  which  the  defendant  forbade  him  to  do, 
but  did  himself  harvest  it  and  appropriate  to  his  own  use. 

For  this  conversion  this  action  is  brought. 

On  the  trial  the  court  ruled  as  matter  of  law,  that  the 
plaintiff  had  no  right  to  the  wheat  under  his  lease,  as  his 
tenancy  terminated  in  April  preceding  the  harvesting  of  it, 
and  his  right  to  the  wheat  terminated  with  the  term  created 
by  the  lease. 

Evidence  was  given  on  the  part  of  the  plaintiff,  which 
plaintiff  insisted  tended  to  prove  that  defendant  consented 
that  he  might  sow  the  wheat,  and  having  consented,  and 
plaintiff  having  sowed  it  in  pursuance  of  such  consent,  he 
was  entitled  in  law  to  harvest  it  and  to  appropriate  to  his 
own  use  one-half  of  its  avails. 

Evidence  was  given  on  the  part  of  the  defence,  which  it 
was  insisted  tended  to  prove  that  he  gave  no  consent  to  the 
sowing  of  the  wheat,  and  hence  it  was  sown  by  plaintiff  in 
his  own  wrong. 

The  court  submitted  to  the  jury  the  question,  whether, 
upon  the  evidence,  there  was  a  parol  agreement  between  the 
parties  that  plaintiff  might  sow  the  forty  acres  with  wheat, 
and  he  charged  them  that  if  there  was  such  an  agreement 
plaintiff  was  entitled  to  recover,  otherwise  not.  The  court 
further  charged  the  jury  that  the  plaintiff  was  entitled  to 
one-half  the  straw.  To  this  part  of  the  charge  the  defend- 
ant's counsel  excepted. 

The  jury  found  a  verdict  in  favor  of  the  plaintiff  for 
$962.62. 

The  defendant  moved  for  a  new  trial,  which  motion  was 
denied. 

Judgment  was  entered  on  the  verdict,  and  the  defendant 


212  CASES  IN  THE  SUPREME  COURT       '   [Dec., 

Clarke  v.  Rannie. 

appeals  from  both  the  order  denying  a  new  trial  and  from 
the  judgment. 

In  order  to  enable  us  to  decide  whether  a  new  trial  was 
properly  refused,  an  examination  of  the  evidence  given  on 
the  trial  becomes  indispensable. 

The  position  of  the  appellant  is,  that  there  was  no  evidence 
of  a  contract  between  the  plaintiff  and  the  defendant,  that 
the  former  might  sow  forty  acres  of  the  farm  with  wheat 
in  the  fall  of  1866,  or  if  there  is  any  evidence  of  such  an 
agreement,  it  is  so  slight  and  the  weight  of  evidence  against 
it  is  so  preponderating,  that  the  verdict  finding  such  a  con- 
tract cannot  and  ought  not  to  be  maintained. 

The  plaintiff  is  the  only  witness  in  the  case  who  testifies  to 
such  an  agreement,  or  to  any  fact  from  which  such  an  agree- 
ment could  reasonably  be  inferred.  He  says  that  in  July, 
1866,  the  defendant  came  on  to  the  farm  and  wanted  to  know 
what  fields  the  plaintiff  intended  to  sow  to  wheat ;  he  told 
him  the  clover  lot  and  the  north  field,  then  sown  with  oats, 
and  the  barley  lot,  on  which  barley  was  then  growing 
Defendant  replied  that  he  did  not  think  it  good  policy  to  sow 
wheat  after  oats.  lie  further  testified  that  he  took  the  seed- 
wheat  that  he  sowed  in  the  fall  of  1866  from  the  wheat  raised 
on  the  farm  that  season,  before  it  was  divided,  and  that  he 
subsequently  informed  a  Mr.  Sherman,  who  was  acting  as 
agent  for  the  defendant,  that  he  had  taken  some  of  the  wheat 
for  seed,  and  no  objection  was  made  to  it.  This  was  after  the 
wheat  was  sown,  and  after  the  wheat  was  threshed  and  sold. 

There  is  no  proof  of  the  authority  of  Sherman,  except  that 
he  acted  for  defendant  in  receiving  the  avails  of  the  crops. 

The  plaintiff  further  testified  that  in  the  winter  of  1866 
and  186T,  or  spring  of  1867,  Sherman  talked  with  him  about 
buying  his  share  of  the  wheat,  and  in  the  spring  it  was  offered 
for  sale  at  auction.  Sherman  said  he  was  authorized  to  bid 
a  certain  sum  upon  it,  and  requested  a  suspension  of  the  sale 
until  he  could  ascertain  how  much  to  bid,  and  the  sale  was 
suspended  accordingly,  and  he  thereafter  bid  upon  it. 

The  defendant  denies  that  he  ever  had  any  conversation 


1871.]  OF  THE  STATE  OF  NEW  YORK.  213 


Clarke  v.  Rannie. 


with  plaintiff  as  to  the  fields  he  proposed  to  sow  to  wheat  in 
the  fall  of  1866,  and  that  he  did  not  know  of  plaintiff 's  inten- 
tion to  sow  any  part  of  the  land  with  wheat.  It  is  also 
proved  that  the  plaintiff  said,  when  asked  where  he  got  per- 
mission to  sow  wheat  that  fall,  that  he  got  it  from  the  lease. 

Sherman  says  he  has  no  recollection  that  plaintiff  ever  told 
him,  and  exhibited  to  him  a  memorandum  showing  that  he  had 
used  part  of  the  joint  wheat  to  sow  on  the  farm.  If  he  did,  it 
was  after  the  sowing  was  done.  Sherman  did  not  know,  nor 
did  lie  learn  from  plaintiff,  that  he  intended  to  sow  wheat  on 
the  premises,  until  after  the  wheat  \vas  sowed,  and  then  he 
ascertained  by  going  on  to  the  farm  and  seeing  where  it  was 
sowed.  He  further  testifies  that  he  had  no  authority  from 
defendant  to  bid  at  the  auction  for  him,  and  he  denies  that  he 
did  bid  for  him. 

There  is  not  in  the  case  a  particle  of  evidence  that  Sher- 
man or  any  other  person  was  authorized  to  extend  the  term 
of  plaintiff  under  the  lease,  or  to  let  it  to  plaintiff  or  to 
any  other  person.  The  plaintiff  is  contradicted  as  to  several 
material  matters  testified  to  by  him. 

Laying  out  of  view  the  evidence  relating  to  dealings  with 
Sherman  as  unauthorized,  so  far  as  they  have  any  tendency 
to  extend  the  plaintiff 's  term  or  create  a  new  one,  the  evi- 
dence on  the  part  of  plaintiff  of  authority  of  defendant  to  him 
to  sow  the  wheat  is  his  own,  and  is  that  the  defendant,  in  the 
fall  of  1866,  asked  him  what  fields  he  intended  to  sow  with 
wheat,  and  he  told  him. 

It  cannot  be  that  this  evidence,  standing  un contradicted,  is 
enough  to  sustain  the  verdict,  but  as  that  statement  is  directly 
contradicted,  as  is  every  other  tending  to  corroborate  it,  the 
verdict  cannot  be  sustained.  It  is  against  the  evidence,  and 
must  be  set  aside. 

The  plaintiff,  entitled  to  recover,  was  entitled  to  recover 
one-half  of  the  straw. 

The  judgment  and  order  must  be  reversed,  and  a  new  trial 
ordered ;  costs  to  abide  the  event. 

Judgment  reversed. 


214  CASES  IN  THE  SUPREME  COURT  [Jan., 

McKinley  v.  Tucker. 


ALEXANDER  McKiNLEY,  Kespondent,  v.  SIDNEY  M.  TUCKEE, 
Sheriff,  &c.,  Appellant. 

(GENERAL  TEBM,  FOURTH  DEPARTMENT,  JANUARY,  1872.) 

If  the  plaintiff  in  an  execution  treats  it  as  properly  in  the  officer's  hands 
after  the  return  day,  he  waives  his  existing  right  of  action  for  its  non- 
return. 

Instructions  to  the  deputy  after  the  return  day,  implying  a  consent  that  he 
may  retain  the  execution,  make  the  deputy  the  party's  agent  and  dis- 
charge the  sheriff  from  an  accrued  cause  of  action  for  its  non-return. 

Thus  where  after  the  return  day  the  plaintiff  directed  the  deputy  to  take 
notes  and  hold  them  till  due,  and  then  apply  them  on  the  execution, — 
Held,  a  recognition  that  the  execution  was  rightfully  in  the  deputy's 
hands,  consent  for  his  retaining  it  until  maturity  of  the  notes,  and  a 
waiver  of  the  accrued  right  of  action  for  non-return. 

Corning  r.  SouMand  (3  Hill,  552),  explained  and  approved ;  McKinley  v. 
Tucker  (59  Barb.,  93),  overruled. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment 
entered  in  favor  of  the  plaintiff  upon  the  report  of  a  referee. 

The  case  came  before  the  referee  for  a  retrial,  granted  on  a 
previous  appeal  to  the  General  Term.  (See  59  Barb.,  93.) 

S.  N.  Dada,  for  the  appellant. 

B.  G.  Lewis,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  T\\vfi.fa.  in  the  case  of  McKinley  v.  Dada 
et  al.,  was  delivered  to  Folger,  the  defendant's  deputy,  on  the 
28th  March,  1868,  and  on  the  same  day  he  levied  upon  the 
property,  by  virtue  of  it,  of  sufficient  value  to  satisfy  it.  The 
fi.fa.  has  never  been  returned. 

After  the  return  day  had  passed,  Dada,  one  of  the  defend- 
ants, applied  to  the  plaintiff  for  further  time  within  which  to 
pay  the  amount  of  the  execution,  and  if  he  would  give  it,  he 
(Dada)  would  put  into  the  deputy's  hands  two  promissory 
notes  of  $100  each,  as  security  for  the  payment  thereof. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  215 

McKinley  «.  Tucker. 

The  plaintiff  at  first  peremptorily  refused  to  consent  to 
further  delay,  but  finally  as  a  favor  to  Dada  signed  the  follow- 
ing note  addressed  to  Folger  who  still  held  thejl.fa: 

"  HASTINGS,  July  22, 1868. 

GEORGE  FOLGER. — Take  the  two  notes  of  $100  each,  made 
by  Howard  and  indorsed  by  Willard  Johnson,  and  hold  same 
till  due,  and  when  paid  apply  them  on  execution  against 
Merrill  and  Dada,  and  I  will  not  hurry  you  on  the  execution. 

ALEXANDER  McKiNLET." 


This  note  was  delivered  to  Folger,  who  received  the  notes 
for  the  purpose  for  which  they  were  delivered  to  him. 

One  of  the  notes  was  paid,  and  the  avails  paid  over  to  the 
plaintiff  to  apply  on  the  fi.  fa.  The  other  note  has  never  been 
paid ;  it  matured  in  December,  1868.  This  action  was  com- 
menced 23d  January,  1869. 

On  the  llth  December,  1868,  the  plaintiff  wrotef  to  Folger, 
saying :"  I  want  you  to  close  up  the^.y<z.  by  the  1st  January, 
if  possible." 

The  facts,  as  thus  stated,  are  taken  from  the  findings  of 
the  referee,  and  they  are  all  that  have  any  material  bearing 
on  the  questions  of  law  arising  in  the  case. 

The  action  is  for  not  returning  the  fi.  fa.  as  required  by 
law. 

The  non-return  in  sixty  days  is  conceded,  and  a  right  of 
action  accrued  to  the  plaintiff  by  reason  thereof. 

The  defence  is,  that  its  return,  and  the  action  for  its  non- 
return, were  waived. 

The  note  to  Folger  is  an  unequivocal  recognition  that  the 
fi.fa.  is  rightfully  in  his  hands,  two  months  after  the  return 
day,  and  gave  plaintiff's  consent  to  the  retention  of  it  by 
Folger  until  the  notes  deposited  with  him  became  due. 

This  instruction  is  wholly  inconsistent  with  the  right  of  the 
plaintiff  to  sue  for  its  non-return  until  the  expiration  of  the 
time  thus  specified  by  himself. 

"When  a  plaintiff  sues  for  the  non-return  of  a^./a.,  he  sur- 


216  CASES  IN  THE  SUPREME  COURT          [Jan., 

McKinley  v.  Tucker. 

renders  all  right  to  control  it,  or  the  officer  holding  it ;  and 
if  lie  assumes  to  control  it,  to  treat  it  as  properly  in  the 
officer's  hands  after  the  return  day  has  passed,  he  waives  his 
right  of  action.  He  cannot  treat  the  process  as  rightfully  in 
the  hands  of  the  officer,  and  at  the  same  time  sue  for  damages 
because  it  was  not  returned. 

In  Corning  v.  Southland  (3  Hill,  552),  the  return  day  of 
the/./«.  was  the  23d  February,  1841.  On  the  18th  of  that 
month,  the  plaintiff's  attorney  wrote  to  defendant's  deputy, 
informing  him  that  plaintiff  would  accept  an  indorsed  note 
for  a  part  of  the  debt  at  four  months  and  the  balance  in 
money,  and  if  it  was  satisfactory,  the  judgment  would  be 
satisfied. 

But  the  attorney  refused,  in  the  most  positive  manner,  to 
interfere  with  fhefi.fa.  This  letter  was  received  about  the 
22d  or  23d  February.  A  note  was  then  prepared  and  sent  to 
the  plaintiff,  which  was  not  satisfactory,  and  on  the  12th 
March  the  suit  was  commenced. 

On  the  trial  it  seems  to  have  been  conceded  that  if  the 
letter  of  the  attorney  had  been  received  before  the  return  day, 
the  action  could  not  be  maintained.  The  defendant's  counsel 
insisted  that  the  letter  became  operative  from  its  date,  and 
requested  the  court  so  to  charge.  The  court  refused,  but 
charged  them  that  if  it  reached  the  deputy  before  the  return 
day,  they  should  find  for  the  defendant;  if  they  found  other- 
wise, their  verdict  should  be  for  plaintiff.  The  jury  found 
for  the  plaintiff. 

The  court  at  General  Term  held  this  instruction  to  the 
jury  erroneous,  but  on  other  grounds  refused  a  new  trial. 

COWEN,  J.,  in  speaking  of  the  charge  says:  Taking  it  as 
the  learned  judge  did  at  the  trial,  that  Mr.  White's  (the 
attorney's)  letter  of  18th  February  contained  an  authority  to 
hold  the  execution  over  the  return  day,  the  case  may,  I  think, 
be  put  in  this  way :  the  deputy  assumed  the  office  of  a  private 
agent  and  held  over  on  the  presumed  account  of  the  plaintiffs 
or  their  attorneys.  This  he  had  no  right  to  do  at  the  time, 
but,  like  an  act  of  any  other  person  assuming  to  be  agent,  or 


1872.]  OF  THE  STATE  OF  NEW  YORK.  217 

McKinley  v.  Tucker. 

of  an  agent  going  beyond  his  authority,  the  act  or  excess  must 
be  legalized,  or  rendered  valid,  by  subsequent  adoption.  Sup- 
pose, for  instance,  no  letter  had  been  written  by  the  attorney, 
but  he  had  distinctly  approved  of  the  delay,  such  approbation 
certainly  would  not  have  enured  directly  to  discharge,  a  claim 
or  cause  of  action  founded  on  the  neglect,  but  it  would  have 
had  that  effect  indirectly,  on  the  maxim  "  animus  ratihdbitis" 
etc.  The  maxim  was  thus  applied  to  discharge,  or  rather 
limit,  a  claim  in  Armstrongs.  Gilchrist  (2  J.  Gas.,  424; 
Livermore  on  Ag3ncy,  44,  47).  Indeed,  the  cases  are  entirely 
familiar,  and  very  numerous,  of  men  assuming  to  act  for 
others  on  the  ennrgency  of  the  occasion,  even  wrongfully  and 
injuriously,  being  saved  from  an  action  by  the  party  inter- 
ested acquiescing  in  the  transaction  as  done  for  his  benefit. 
The  judge,  I  think,  erred,  therefore,  in  putting  the  case  to  the 
jury  whether  the  letter  arrived  before  or  after  the  23d 
February. 

But  as  the  officer  did  not  conform  to  the  condition  on  which 
the  consent  to  delay  was  given,  a  new  trial  was  denied. 

Now,  if  I  understand  this  case,  it  decides  authoritatively 
that  consent  by  a  party  or  his  attorney  that  a  deputy  may 
retain  a  fi.  fa.  after  the  return  day  after  the  consent  is  a 
waiver  of  a  right  of  action  then  accrued  in  favor  of  the  plain- 
tiff in  the  fi.  fa.,  and  that  such  instruction  to  a  deputy 
makes  him  the  agent  to  the  party  and  the  sheriff  is  thereby 
discharged. 

If  this  is  a  correct  view  of  the  case,  it  is  decisive  of  the  one 
before  us,  and  renders  necessary  a  reversal  of  the  judgment, 
unless  the  decision  of  the  fifth  judicial  district  controls  us. 

The  rule  of  this  department  has  been  to  yield  the  views  of 
the  judges  of  the  present  General  Term  to  those  of  the  judges 
of  the  District  Gansral  Term  in  the  samo  case  where  they  are 
directly  upon  the  question  presented  for  decision,  unless  they 
have  been  overturned  by  the  Court  of  Appeals,  or  they  acted 
upon  a  misapprehension  of  the  facts  or  of  the  law,  and  the 
error  is  such  that  if  the  case  was  again  before  them  they 
would  in  all  probability  come  to  the  opposite  conclusion. 

LANSING — VOL.  VI.         28 


218  CASES  IN  THE  SUPREME  COURT          [Jan., 

McKinley  ».  Tucker. 

I  sat  in  the  District  General  Term  when  this  case  was 
before  it,  together  with  MORGAN  and  DOOLITTLE,  JJ.  They 
came  to  the  conclusion  that  the  letter  to  Folger  did  not  waive 
the  right  of  action  which  had  accrued  to  the  plaintiff  before 
it  was  written,  and  reversed  the  judgment  of  the  referee,  which 
was  then  in  favor  of  the  defendant. 

I  dissented  from  my  brethren  for  the  reason  that  in  my 
opinion  the  right  was  waived. 

The  case  of  Oorniny  v.  Southland,  supra,  was  cited  on  the 
argument,  and  Justice  MORGAN  in  his  opinion  states  the  case 
as  follows:  In  Corning  v.  Southland  the  proposal  of  the 
plaintiff  to  the  deputy  to  take  a  note  was  before  the  return 
day,  yet  as  it  was  not  got  up  according  to  the  proposal,  the 
sheriff  was  held  responsible  for  not  returning  the  execution. 

"With  the  highest  respect  for  the  views  of  my  brethren  who 
sat  with  me  in  the  argument  in  the  District  General  Term,  1 
am  constrained  to  say  that  the  case  of  Corning  v.  Southland 
was  entirely  misunderstood. 

The  letter  of  the  attorney  was  dated  before  the  return  day, 
and  was  found  by  the  jury  to  have  been  received  before  that 
day,  but  the  court  in  bane  held  that  it  was  wholly  immaterial 
whether  it  was  received  before  or  after  the  return  day  it  dis- 
charged the  action.  If  received  before,  no  right  of  action 
ever  accrued  ;  if  after,  it  was  a  satisfaction  of  the  non-return 
and  waived  a  right  of  action  if  it  had  accrued. 

I  cannot  doubt  but  that  if  my  brethren  had  so  understood 
the  case  they  would  not  have  reversed  the  judgment  of  the 
referee. 

The  case  of  Corning  v.  Southland  is  not  only  binding  as 
authority,  but  the  grounds  on  which  the  case  was  decided 
commend  themselves  to  every  person's  sense  of  justice. 

The  judgment  should  be  reversed  and  new  trial  ordered ; 
costs  to  abide  the  event. 

Judgment  reversed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  219 


Gillett  v.  Borden. 


SEYMOUK  C.  GILLETT,  [Respondent,  v.  JOB  R.  BOEDER, 
Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY,  1872..) 

Where,  on  contracting  to  convey  a  piece  of  land,  the  vendor  intended  to 
reserve  a  strip  of  a  certain  width,  but,  through  inadvertence,  signed  a 
contract  with  reservation  of  a  smaller  strip,  and  the  vendee  knew  the 
mistake,  did  not  inform  the  vendor  of  it,  but  attempted  to  obtain  the 
benefit  of  it, — Held,  that  the  act  of  the  vendee  was  fraudulent,  and  the 
contract  would  be  reformed  on  the  ground  of  fraud. 

No  objection  or  demurrer  having  been  made  before  trial  to  the  statement 
of  the  causes  of  action  in  the  complaint,  a  refusal  to  compel  the  plain- 
tiff to  elect  then  upon  which  he  will  proceed  is  properly  refused. 

THIS  was  an  appeal  by  the  defendant  from  a  jndgment 
entered  on  the  decision  of  the  court  at  Special  Term  in  favor 
of  the  plaintiff.  The  facts  are  stated  in  the  opinion. 

Amos  If.  Prescott,  for  the  appellant. 

Thomas  Richardson,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  In  the  fall  of  1868  the  plaintiff,  being 
owner  of  a  lot  of  land  in  the  village  of  Ilion,  in  the  county 
of  Herkimer,  on  which  he  desired  to  erect  a  double  tenement 
house,  entered  into  negotiations  with  defendant  to  erect  said 
house,  and,  in  part  payment  therefor,  to  take  a  parcel  of  land 
adjoining  that  on  which  the  house  was  to  be  erected.  The 
main  part  of  the  house  to  be  built  was  to  be  thirty-four  feet 
wide,  with  two  wings  of  five  feet  each  at  the  rear,  making  the 
whole  width  forty-four  feet.  The  plaintiff  claims  that  he 
desired  to  reserve  ten  feet  in  width  of  land  adjoining  the  house 
for  a  lane  for  the  use  of  it,  making  the  whole  width  of  land 
to  be  reserved  fifty-four  feet.  The  parties  went  upon  the 
land,  the  lines  were  pointed  out,  as  the  plaintiff  claims,  and  a 
diagram,  showing  the  plan  and  dimensions  of  the  house, 
exhibited  to  defendant.  The  price  which  plaintiff  required 


220  CASES  IN  THE  SUPREME  COURT  [Jan., 


Gillett  v.  Borden. 


for  the  land,  to  be  given  in  part  payment  for  building  the 
-  house,  was  also  stated  to  defendant. 

The  defendant  desired  time  to  prepare  an  estimate  of  the 
cost  of  erecting  the  house,  and,  in  a  few  days  thereafter,  pre- 
sented his  estimate,  and  a  verbal  agreement  for  building  the 
house  was  concluded  between  the  parties.  It  was  proposed 
to  put  it  into  writing,  and  the  defendant  was  directed  by 
plaintiff  to  have  a  writing  drawn,  and,  when  done,  plaintiff 
said  he  would  sign  it.  Before  going  to  get  the  contract 
drawn,  the  defendant  stated  over  to  plaintiff  several  times 
the  width  of  the  piece  of  land  to  be  reserved  for  the  house 
proposed  to  be  built,  and  he,  plaintiff,  was  as  repeatedly  asked 
if  it  was  right,  and  he  said  it  was.  The  width  so  stated  was 
forty-four  feet,  and  the  contract  was  so  prepared,  submitted 
to  the  plaintiff,  read  over  to  him,  and  finally  executed  by  him. 
The  plaintiff  subsequently  discovered  his  mistake,  and  applied 
to  defendant  to  correct  it,  but  he  refused,  and  thereupon  this 
action  was  brought.  The  complaint  contains  two  counts  or 
causes  of  action,  in  one  of  which  the  plaintiff  seeks  to  obtain 
a  reformation  of  the  contract  on  the  ground  of  mutual  mis- 
take, by  striking  out  the  words  forty-four  where  they  occur 
in  the  contract,  as  descriptive  of  the  width  of  the  land  to  be 
reserved  by  plaintiff,  and  inserting  in  place  thereof  the 
words  fifty-four.  The  second  cause  of  action  charges  that 
the  words  forty-four  were  fraudulently  inserted  in  the  con- 
tract, instead  of  fifty-four,  and  asks  that  the  contract  be 
annulled  or  reformed. 

The  answer  denies  that  there  was  any  mutual  mistake  as 
to  the  width  of  the  land,  or  any  fraud,  and  alleges  that  the 
width  of  the  lot  was  repeatedly  stated  over  to  plaintiff  as 
being  forty-four  feet,  and  as  often  said  it  was  correct. 

On  the  trial  the  plaintiff  gave  evidence  tending  to  prove 
that  he  showed  to  the  defendant,  before  the  contract  was 
drawn,  the  dimensions  of  the  building  he  desired  to  erect, 
which  were  forty-four  feet,  and  that,  in  addition  thereto,  he 
intended  to  reserve  ten  feet  for  a  lane  for  the  use  of  the 
house;  that  he  pointed  out  to  defendant  where  the  lines  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  221 


Gillett  v.  Borden. 


the  lot  would  run ;  that  when  the  defendant  stated  over  to 
him  the  width  of  the  land  to  be  reserved  as  forty-four  feet,  he 
assented  that  that  was  the  correct  width,  forgetting,  for  the 
moment,  that  the  whole  width  of  the  house  was  forty-four 
feet,  and  not  thirty-four  feet,  which  was  the  width  of  the 
main  part  of  it. 

The  defendant  denied  that  plaintiff  told  him  before  the 
bargain  for  building  the  house  was  made,  or  at  any  other 
time,  that  he  intended  to  reserve  ten  feet  for  a  lane,  or  that 
he  pointed  out  to  him  the  lines  of  the  lot  by  which  it  appeared 
that  ten  feet  were  reserved  for  a  lane.  And  he  testifies 
that  he  stated  over  to  plaintiff  repeatedly,  that  the  width  of 
the  lot  to  be  inserted  in  the  contract  was  forty- four  feet,  and 
asked  him  if  it  was  right,  and  he  as  often  said  it  was.  And 
he  proved  by  several  persons  that  plaintiff  stated,  in  their 
hearing,  that  the  mistake  in  the  contract  was  caused  by  him- 
self, and  that  .he  alone  was  responsible  for  it. 

The  court  finds  the  facts  to  be  as  alleged  in  the  complaint, 
and  that  defendant  knew  that  the  plaintiff,  when  he  signed 
the  contract,  supposed  that  by  it  he  reserved  a  lane  of  ten 
feet,  and  that  he,  defendant,  suffered  him  (plaintiff)  to  exe- 
cute it  without  notifying  him  of  his  mistake,  and  that  he 
withheld  the  information  with  the  intent  to  cheat  and  defraud 
the  plaintiff. 

Judgment  is  ordered  reforming  the  contract  and  there 
directing  a  specific  performance  of  it. 

On  the  opening  of  the  case  at  the  trial  the  defendant  called 
on  the  court  to  compel  the  plaintiff  to  elect  upon  which  of 
the  two  counts  in  his  complaint  he  would  proceed.  The 
court  refused  to  compel  him  to  elect  and  the  defendant's 
counsel  excepted. 

If  two  causes  of  action  are  contained  in  the  complaint, 
which,  by  the  provisions  of  the  Code,  cannot  be  properly 
joined,  it  is  the  duty  of  the  defendant  to  demur  on  account 
of  the  misjoinder,  and  if  he  omits  to  do  so  the  plaintiff  has 
the  right  to  give  evidence  in  support  of  both  or  either,  and 


222  CASES  IN  THE  SUPREME  COURT          [Jan., 

Allen  v.  Todd. 

to  have  judgment  for  whichever  of  the  causes  of  action  he 
establishes  by  his  proof. 

If  lie  may  do  this  when  the  counts  cannot  legally  be  joined 
"  a  fortiori"  may  he  do  it  when  they  may  be  ? 

The  findings  of  the  court  show  conclusively  that  he 
believed  the  evidence  of  the  plaintiff  and  did  not  believe  that 
of  the  defendant.  It  was  therefore  established  that  the 
plaintiff'  intended  to  reserve  fifty-four  feet  for  the  house  and 
lane,  and  that  by  mere  inadvertence  he  signed  the  con- 
tract supposing  that  forty-four  feet  gave  him  the  quantity  of 
land  he  wanted.  And  the  defendant  knew,  at  the  time  of 
signing,  the  plaintiff  was  acting  under  this  mistake,  and  he 
not  only  did  not  inform  him  of  his  mistake,  but  he  attempted 
to  take  advantage  of  it  for  his  own  benefit.  This  was  fraudu- 
lent, and  justified  the  court  in  granting  the  relief  adjudged 
to  the  plaintiff. 

It  was  not  a  case  of  mutual  mistake,  but  it  was  a  mistake 
on  the  part  of  the  plaintiff,  fraudulently  taken  advantage  of 
by  the  defendant.  (East  India  Co.  v.  McDonald,  9  Yes., 
Jr.,  275 ;  1  Story's  Eq.,  §§  147,  167 ;  Evens  v.  Llewellen, 
2  Bro.  C.  C.,  150,  152  note  a  ;  1  Story's  Eq.,  160, 176,  133 
and  note,  254  note.) 

The  judgment  was  right  and  must  be  affirmed  with  costs. 

Judgment  affirmed. 


ISAAC  ALLEN,  Jr.,  Appellant,  -y.   JOHN  TODD,  Respondent. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY,  1872.) 

Inability  to  ascertain  the  quality  or  condition  of  property  warranted  to  be 
at  the  time  of  sale,  of  a  particular  quality  or  in  a  certain  condition,  does 
not  change  the  rule  as  to  the  time  when  a  right  of  action  for  breach  ot 
the  warranty  accrues. 

A  nursery-man  selling  trees,  for  a  certain  kind  of  fruit  trees,  to  one  who 
relies  on  his  representations,  warrants  them  of  the  kind  represented ;  an 
action  on  the  warranty  accrues  immediately  if  the  trees  are  of  a  dif- 
ferent kind. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  223 


Allen  c.  Todd. 


Otherwise  if  the  representations  are  that  the  trees  will  bear  certain  kind  of 
fruit,  hi  which  case  the  right  of  action  arises  when  the  fruit  produced  by 
the  trees  proves  different  from  the  warranty. 

THIS  was  an  appeal  from  a  judgment  of  the  County  Court 
of  Monroe  county  reversing  a  judgment  of  a  justice  of  the 
peace.  The  facts  are  stated  in  the  opinion. 

George  E.  Ripsom,  for  the  appellant. 

George  Truesdale,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  defendant  was  engaged  in  the  busi- 
ness of  raising  fruit  trees  for  sale  near  the  city  of  Rochester. 
The  plaintiff  was  a  farmer  living  in  the  town  of  Clarkson, 
and  wanted  a  species  of  apple  trees  to  plant  on  his  farm 
known  as  twenty-ounce  apple  trees.  He  called  on  the 
defendant  in  the  spring  of  1864  and  asked  him  if  he  had 
such  trees.  Defendant  told  him  he  had  them  growing  in  his 
nursery.  Defendant  sent  his  man  to  a  place  designated  by 
him  to  procure  the  trees.  The  plaintiff  wanted  100,  and 
the  men  dug  them  up  and  delivered  them  to  the  plaintiff 
who  took  them  home  and  planted  them  on  his  farm.  They 
appeared  like  twenty-ounce  apple  .trees.  They  did  not  bear 
until  the  season  of  1870,  and  it  was  then  found  that  they 
were  not  twenty-ounce  trees,  but  of  a  very  inferior  kind. 
The  fruit  was  not  better  (if  as  good)  than  that  raised  from  the 
ordinary  apple  trees. 

The  plaintiff  recovered  before  the  justice.  The  County 
Court  reversed  the  judgment  on  appeal,  on  the  ground  that 
the  action  was  barred  by  the  statute  of  limitations . 

The  only  question  presented  for  consideration  on  this 
appeal  is  whether  the  statute  of  limitations  commences  to  run 
from  the  making  of  the  contract  or  from  the  time  it  was  dis- 
covered they  did  not  bear  twenty  ounce  apples. 

I  am  of  the  opinion  that  there  was  a  warranty  by  the 
defendant,  either  that  the  trees  sold  the  plaintiff  were  twenty- 
ounce  trees  or  that  they  would  bear  twenty-ounce  apples. 


224  CASES  IN  THE  SUPREME  COURT          [Jan., 


Allen  v.  Todd. 


If  the  former  was  the  warranty,  the  right  of  action  accrued 
immediately.  If  the  latter,  the  right  of  action  did  not  accrue 
until  1870,  and  was  not  barred. 

No  warranty  was  in  terms  made  or  given  by  defendant ;  it 
must  be  implied,  if  at  all,  from  the  fact  that  defendant  being 
acquainted  with  the  various  kinds  of  apple  trees,  he  must  be 
held  to  warrant  that  the  trees  delivered  by  him  to  a  purchaser 
are  such  as  he  calls  for,  unless  it  appears  that  the  purchaser 
trusts  to  his  own  knowledge  and  not  to  the  representations  of 
the  seller. 

When  defendant  delivered  to  the  plaintiff  the  100  trees, 
be  declared  them  as  being  twenty-ounce  apple  trees  at  the 
time  of  the  sale.  The  meaning  doubtless  was,  that  the  trees 
would  bear  twenty-ounce  apples,  but  a  warranty  that  they 
would  bear  that  species  of  apples  wrould  be  prospective  in  its 
operation ;  the  other  was  as  to  the  then  present  description 
of  the  trees.  If  the  trees  were  not  the  kind  represented,  the 
warranty  would  be  broken  in  the  one  case,  as  soon  as  made  in 
the  other,  not  until  they  bore  fruit  of  a  different  kind.  The 
latter  form  of  warranty  would  not  be  construed  as  a  war- 
ranty that  the  trees  would  bear  fruit,  but  that,  if  they  did 
bear,  they  Would  be  of  a  species  known  as  twenty-ounce 
apples. 

It  seems  to  me  we  must  hold  the  warranty  to  be  as  to  the 
species  of  the  trees  at  the  time  the  sale  was  made,  and  that  a 
cause  of  action  then  accrued,  and  is  of  course  barred.  There  is 
apparent  injustice  in  requiring  a  plaintiff  to  bring  an  action 
before  it  was  in  his  power  to  show  that  he  had  been 
damniiied.  This  result  might  have  been  avoided  by  requiring 
a  warranty  that  the  trees  would  bear  the  kind  of  fruit 
wanted. 

Inability  to  ascertain  the  quality  or  condition  of  property 
warranted  to  be,  at  the  time  of  the  sale,  a  particular  quality  or 
in  a  certain  condition,  has  never  been  allowed  to  change  the 

'  O 

rule  as  to  the  time  when  a  right  of  action  for  a  breach  of  the 
warranty  occurs.  (Chitty  on  Conts.,  816 ;  Bortly  v.  Faulk- 
ner,  B.  &  Aid.,  283 ;  vol.  2d  U.  S.  Dig.,  805,  §  269 ;  Troop 


1872.]  OF  THE  STATE  OF  NEW  YORK.  225 

Fisher  v.  City  of  Rochester. 

v.  Smith,  20  J,  E.,  33 ;  Leonard  v.  Putney,  5  W.,  30 ;  Allen 
v.  Miller,  17  W.,  202;  Argoll  v.  £ry<mt,  1  Sandf.,  98.) 
The  judgment  of  the  County  Court  must  be  affirmed. 
Judgment  affirmed. 


JACOB  FISHER  et  al.,  Appellants,  v.  THE  Crrr  OF  ROCHESTER 
and  RICHARD  DRANSFIELD,  Respondents. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY,  1872.) 

Under  the  charter  of  Rochester  city,  which  authorizes  the  apportionment 
of  an  excess  of  sums  received  for  assessments  for  city  improvements 
(§  207,  Laws  1860,  chap.  143),  such  assessments  may  be  collected  beyond 
the  actual  cost  of  the  improvement,  if  within  the  estimate  made  pur- 
suant to  section  191,  (Id.) 

The  city  cannot  credit  itself  with  materials  taken  from  the  street  by  its 
contractor  in  paying  him  for  the  work.  They  belong  to  the  owners  of 
the  fee  of  the  street 

THIS  was  a  motion  for  a  new  trial  by  the  plaintiffs  after 
nonsuit  at  Special  Term  in  Monroe  county.  The  facts  are 
stated  in  the  opinion. 

John  McConvitt,  for  the  appellants. 
Jesse  Shepard,  for  the  respondents. 
Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ 

MULLIN,  P,  J.  This  is  an  equitable  action  brought  by  the 
plaintiffs  in  behalf  of  themselves  and  all  others  who  are  tax- 
payers in  the  city  of  Rochester,  liable  to  be  assessed  for  the 
Expenses  of  a  sewer  in  Atkinson  street  in  said  city,  who  might 
come  in  and  make  themselves  parties,  to  restrain  the  common 
council  of  said  city  from  collecting  the  assessment,  made  for 
building  said  sewer,  beyond  the  actual  expense  of  constructing 
the  same,  after  deducting  from  the  contract  price  the  value  ol 
certain  material  which  the  contractor  had  taken  and  appro- 
priated to  his  own  use.  The  grounds  on  which  this  relief  ii 
sought  are : 

1st.  That  by  the  charter  of  said  city  the  common  council 

LANSING — VOL.  VI.         29 


226  CASES  IN  THE  SUPREME  COURT         [Jan., 

Fisher  v.  City  of  Rochester. 

cannot  collect  from  those  liable  to  be  assessed  for  sewers  a 
greater  sum  than  the  actual  cost  thereof. 

2d.  The  common  council  is  bound  to  deduct  from  the 
amount  to  be  paid  to  the  contractor  the  value  of  the  stone 
which  the  contractor  excavated  in  preparing  to  build  the 
sewer,  and  which  he  took  and  applied  to  his  own  use. 

The  city  surveyor  estimated  the  cost  of  the  sewer  at 
$1,055.  This  sum  was  assessed  on  the  persons  living  on 
the  street  in  which  the  sewer  was  laid,  who  were  deemed  by 
the  common  council  to  be  benefited  thereby.  The  defendant 
Dransfield  contracted  to  build  the  sewer  for  $632.60. 

The  common  council  passed  a  resolution  that  there  be  col- 
lected of  those  who  were  assessed  for  the  work  eighty-five 
per  cent  of  the  cost  as  estimated  by  the  city  surveyor, 
whereas  there  should  be  deducted  for  stone  taken  by  the  con- 
tractor some  $240,  and  to  pay  the  balance  of  the  cost  of  the 
work,  only  about  sixty  per  cent  of  the  estimated  cost  should 
be  collected. 

The  court  non-suited  the  plaintiff,  and  a  motion  was  then 
made  for  a  new  trial,  which  was  denied,  and  from  that  order 
the  plaintiff  appeals  to  this  court. 

The  plaintiffs  were  rightly  non-suited. 

The  proceedings  to  construct  and  to  assess  the  expense  ot 
the  sewer  upon  those  of  the  citizens  of  Rochester  liable  to 
be  assessed  therefor,  are  concededly  regular. 

The  only  grounds  of  complaint  are :  1st.  That  the  city 
authorities  are  proceeding  to  collect  of  those  liable  (of  whom 
plaintiffs  are  part)  eighty-five  per  cent  of  the  estimated  expense 
of  the  work,  whereas  sixty-two  per  cent  would  be  sufficient 
to  pay  the  whole  expense  of  the  work.  And,  2d.  That  the 
contractor  should  be  compelled  to  deduct  from  the  sixty-two 
per  cent  some  $240,  for  stone  taken  from  the  street  and  used 
in  the  construction  of  the  sewer,  which  was  the  property  of 
the  owners  of  the  land  over  which  the  said  sewer  was  con- 
structed and  to  whom  the  said  stone  belonged. 

By  section  161  of  the  charter,  the  common  council  13 
authorized  to  construct  sewers. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  227 

Fisher  v.  City  of  Rochester. 

By  section  191,  the  common  council  is  required  to  ascer- 
tain the  expense  of  the  work,  and,  by  sections  192  and  200, 
to  direct  the  assessors  to  assess  on  the  real  estate  benefited, 
and  the  assessment  when  ratified  is  final  and  conclusive. 

And  the  amount  so  assessed  is  required  to  be  collected  and 
paid  over  to  the  city  treasurer.  By  section  207,  it  is  provided 
that  if  more  is  collected  than  is  required  to  pay  the  expense 
of  the  work,  the  common  council  is  authorized  to  apportion 
it  amongst  those  assessed,  and  by  section  208,  if  less  than  the 
full  amount  is  raised,  the  deficiency  may  be  reassessed  and 
collected. 

In  view  of  this  legislation  it  is  a  mistake  to  suppose  the 
common  council  may  not  collect  the  whole  estimated  expense 
of  the  work,  whether  it  is  more  or  less  than  the  actual  expense. 

The  city  has  no  right  to  credit,  as  between  it  and  the  con- 
tractor, for  the  stone  taken  from  the  street  by  the  contractor. 

As  I  understand  the  case,  the  owners  of  the  lots  on  each 
side  of  the  street  own  to  the  center  of  it.  The  stone  and 
earth  within  the  limits  of  the  street  are  the  property  of  the 
individual  owners  and  not  of  the  city.  It  has  no  interest 
whatever  in  such  property. 

Each  owner  may,  I  suppose,  collect  the  value  of  the  stone, 
taken  from  his  lot,  of  the  contractor  ;  or  they  might  assign 
their  claims  to  the  city,  and  in  that  way  make  the  demand 
available  by  way  of  reduction  of  the  contractor's  demand 
against  the  city,  but  in  no  way  can  this  action  be  maintained 

The  order  refusing  a  new  trial  is  affirmed,  with  costs. 

Order  affirmed. 


228  CASES  IN  THE  SUPREME  COUKT         [Jaa.j 

Lessee  v.  Williams. 


CLARK  LOSSEE,  Appellant,  v.  SAMUEL  P.  WILLIAMS,  Respondent. 

80a  271 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY  7,  1873.) 

A  n  agent,  for  sale  of  rights  under  a  patent,  agreed  to  take  a  note  to  hia 
principal  on  such  a  sale,  and  then,  with  the  principal's  authority,  agreed 
to  trade  the  note  for  merchandise  on  his  own  account  with  the  plaintiff, 
with  an  unwritten  guaranty  of  its  goodness  and  collectibility ;  the  note 
was  afterward  issued  to  the  principal  or  bearer,  and  delivered  by  the 
agent,  as  agreed,  to  the  plaintiff,  in  payment  for  goods  furnished.  Held, 
that  the  agent  acted  as  agent  in  transferring  the  note,  and  the  guaranty 
bound  his  principal. 

Held,  also,  that  the  guaranty  was  not  within  the  statute  of  frauds. 

THIS  was  an  appeal  from  an  order  for  a  new  trial,  granted 
upon  the  defendant's  motion  at  Special  Term,  after  verdict  at 
the  circuit  for  the  plaintiff.  The  facts  are  stated  in  the 
opinion. 

W.  Woodbury,  for  the  appellant. 

C.  D.  Murray,  for  the  respondent. 

Present — HULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  first  cause  of  action  stated  in  the 
plaintiff's  complaint  is  for  goods  sold  and  delivered  by  plain- 
tiff to  defendant. 

No  evidence  was  given  upon  this  count  on  the  trial,  and  no 
further  attention  need  be  given  to  it. 

The  second  cause  of  action  was  on  the  guaranty  of  the  col- 
lection of  a  promissory  note  made  by  Margaret  F.  Arnold  for 
$170,  dated  October  2, 1866,  payable  in  six  months  from  date, 
with  interest,  to  Samuel  P.  "Williams  or  bearer. 

It  is  not  alleged  nor  was  it  proved  on  the  trial  that  thia 
guaranty  was  in  writing ;  on  the  contrary,  it  clearly  appears 
that  it  was  not  in  writing  but  by  parol  merely. 

The  note  was  received  in  payment  of  an  interest  in  a  patent 
right,  of  which  Williams,  the  defendant,  was  a  patentee,  and 
was  sold  to  plaintiff  upon  the  representation  and  warranty 


1872.]  OF  THE  STATE  OF  NEW  YORK  229 

Lossee  «.  Williams. 

that  it  was  good  and  collectible,  and  he  paid  for  it  in  goods 
out  of  his  store. 

The  complainant  alleges  that  a  suit  was  brought  on  said 
note  against  the  maker,  judgment  recovered,  and  execution 
issued  and  returned  nuUa  bona. 

There  was  a  verdict  for  the  plaintiff.  The  defendant  moved 
for  a  new  trial,  which  motion  was  granted,  and  from  that 
order  the  plaintiff  appeals. 

The  grounds  on  which  the  trial  was  granted  would  seem  to 
be  that  the  Arnold  note,  at  the  time  of  the  sale  to  the  plain- 
tiff, was  the  property  of  one  Slawson  and  not  of  defendant, 
and  the  guarantee,  if  any,  was  given  by  Slawson  and  not  by 
defendant. 

It  is  proved,  by  the  testimony  of  both  defendant  and  Slaw- 
eon,  that  the  latter  was  the  agent  of  the  former  in  the  sale  of 
interests  in  his  patent  right  for  a  fence,  for  some  two  months 
in  the  summer,  and  until  after  a  negotiation  between  them 
and  the  plaintiff  for  the  exchange  of  plaintiff's  store  of  goods 
for  an  interest  in  said  patent.  The  negotiation  was  intro- 
duced by  Slawson,  it  was  favorably  received  by  plaintiff,  and 
Slawson  left,  saying  defendant  would  be  up  and  trade  with 
him. 

It  is  said  by  defendant  that  he  went  to  see  plaintiff  about 
the  trade,  but  they  could  not  agree,  and  on  the  same  day 
defendant  discharged  Slawson  from  his  service,  and  he  was 
not  again  his  agent  until  May,  1867. 

But  notwithstanding  this  discharge,  Slawson,  with  the  con- 
sent of  defendant,  sold  to  Arnold  an  interest  in  the  patent, 
and  took  Mr.  Arnold's  note  for  the  amount.  He  also  sold  an 
interest  to  one  Neweomb,  with  defendant's  assent,  and  took 
his  note,  which  he  (Slawson)  held  at  the  time  he  was  discharged 
and  until  the  trade  with  plaintiff  for  those  notes;  and  for 
these  services  Slawson  was  entitled  to  pay,  and  Slawson  claims 
that  the  Arnold  note  was  transferred  to  him  in  payment  of 
his  services. 

The  plaintiff  does  not  say  in  terms  that  he  dealt  with  Slaw- 
son as  defendant's  agent,  yet  such  was  unquestionably  his  under- 


230  CASES  IN  THE  SUPREME  COURT          [Jan., 

Lessee  v.  Williams. 

standing  of  the  relation  of  those  persons,  and  he  says  he  was 
never  informed  that  the  agency  had  been  terminated,  but  Slaw- 
son  says  he  thinks  he  so  told  him.  Such  evidence  cannot  over- 
come the  positive  denial  of  the  plaintiff. 

The  impression  made  up"on  my  mind  by  the  evidence  as  to 
termination  of  the  agency  is  that  it  was  a  mere  ceremony,  an 
that  it  was  neither  the  understanding  nor  the  intention  of  tl 
parties  to  discontinue  the  agency.     It  was  not  in  fact  ten 
nated.     Slawson  continued  to  act  under  the  arrangement  as  to 
compensation  first  made,  and  the  papers  which  belonged  to 
the  principal  at  the  conclusion  of  the  agency  were  not  surren- 
dered but  retained  by  the  agent. 

What  end  was  to  be  attained  by  this  pretended  dismissal  of 
Slawson  from  the  defendant's  service  we  do  not  know,  unless  it 
was  to  enable  defendant  to  get  the  benefit  of  the  representations 
as  to  the  value  of  the  patent,  and  of  the  notes  taken  on  sales 
made  by  Slawson,  without  defendant  incurring  any  responsi- 
bility in  reference  thereto. 

But  whether  Slawson  was  agent  in  the  sale  of  interests  in  the 
patent  was  not  the  question  on  which  the  defendant's  liability 
depends.  Slawson  might  be  agent  for  that  purpose,  but  not 
authorized  to  bind  defendant  by  a  guaranty  of  the  collectibility 
or  goodness  of  the  notes.  Yet  the  fact  of  agency  for  defendant 
in  reference  to  the  sale  of  interests  and  the  receipt  of  notes 
therefor  is  entitled  to  some  weight  in  passing  upon  the  other 
question. 

As  to  the  connection  of  Slawson  with  the  Arnold  note,  he 
gives  the  fullest  and  clearest  relation. 

It  was  the  6th  October,  1 866,  that  Slawson  talked  with 
plaintiff  about  the  purchase  of  the  Arnold  note.  Slawson  says 
plaintiff  then  understood  that  defendant  was  negotiating  with 
Mrs.  Arnold  and  the  note  was  not  given,  and  it  was  under- 
stood that  the  note  was  to  be  dated  at  the  time  when  he 
(defendant)  should  sell.  It  (the  sale  to  Mrs.  Arnold)  could  not 
be  a  valid  transaction  between  Mrs.  Arnold  and  Slawson  and 
Williams  until  he  (defendant)  had  complied  with  the  condi- 
tions of  the  written  contract,  which  was  dated  the  2d  October. 


1872.]          OF  THE  STATE  OF  NEW  YORK.  231 


Lessee  « .  "Williams. 


Slawson  and  his  wife  then  got  goods  on  the  credit  of  the  notes 
agreed  to  be  sold  to  the  plaintiff.  The  Arnold  note  was  not 
in  fact  delivered  to  plaintiff  until  4th  February,  1867,  and  it 
was  not  obtained  from  Mrs.  Arnold  until  about  the  middle  of 
November. 

On  cross-examination  Slawson  testified  that  he  made  the 
papers  between  Mrs.  Arnold  and  defendant  the  same  as  he  did 
when  agent  for  defendant.  He  told  defendant  he  could  get  a 
note  of  Arnold  when  he  went  to  him,  and  he  (defendant)  told 
Slawson  to  take  it,  and  he  took  it ;  told  defendant  in  about  a 
week  thereafter  he  had  got  it. 

In  answer  to  the  question,  "  did  he  (defendant)  pay  you 
your  interest  in  the  Arnold  note,  or  pay  you  anything  for  the 
Arnold  business?"  the  witness  says:  "I  understood  it  so  when 
plaintiff  agreed  to  take  the  two  notes  I  was  going  to  trade ; 
Williams  consented  that  I  should  trade  the  Arnold  note  out 
*  *  Williams  said  he  would  trade  out  the  Newcomb  note ; 
we  were  to  keep  an  exact  account  what  each  of  us  had.  I 
had  to  render  him  the  amount  that  I  received.  I  was  charged 
with  the  Arnold  note  as  between  me  and  Williams.  I 
charged  myself  with  the  Arnold  note  and  accounted  for  it." 

Now,  it  is  established  by  this  evidence  that  on  the  6th 
October,  when  the  arrangement  was  made  for  the  sale  to 
plaintiff  of  the  two  notes,  the  Arnold  note  was  not  in  existence ; 
that  note  was  thereafter  to  be  made  and  delivered  to  plaintiff. 

It  is  also  established  by  this  evidence  that  when  that  bar- 
gain was  made,  defendant  was  the  party  entitled  to  it ;  it  was 
to  be  received  in  payment  of  his  property,  and  Slawson  had 
no  sort  of  interest  in  it. 

It  is  also  established  that  this  note  was  never  transferred  to 
Slawson  ;  the  only  interest  transferred  to  him  was  the  right  to 
trade  out  the  amount  of  it  at  the  store. 

And  it  is  also  established  that  plaintiff  derived  title  to  the 
note  as  the  property  of  defendant,  and  no  different  bargain 
was  ever  made  with  him. 

Any  claim  of  title  to  the  note  by  Slawson,  at  any  time,  is 
shown  by  his  own  evidence  to  be  utterly  unfounded. 


CASES  IN  THE  SUPREME  COURT  [Jan., 

Lossee  v.  Williams. 

I  am  of  the  opinion  that  when  the  note  was  sold  it  was  the 
property  of  defendant,  and  Slawson  sold  it  as  his  agent. 

The  Arnold  note  was  sold  to  the  plaintiff  in  payment  of 
the  goods  delivered  to  Slawson,  and  it  was  a  part  of  the  trade 
that  the  collection  of  the  note  should  be  guaranteed  to  the 
plaintiff. 

The  first  question  is  whether  the  defendant  was  bound  by 
the  contract  of  guaranty  made  by  his  agent,  Slawson. 

Slawson  was  a  special  and  not  a  general  agent ;  but  as  a  spe 
cial  agent,  in  the  absence  of  any  limitation  of  his  authority,  he 
had  the  power  to  warrant  that  the  note  was  good  or  collect- 
able. (Ferguson  v.  Hamilton,  35  Barb.,  427.) 

In  that  case  the  defendant  made  a  note  payable  to  one 
Hale,  and  gave  it  to  him  to  raise  the  money  on  it.  Hale  was  to 
have  part  of  the  money  when  raised.  Hale  offered  to  sell  the 
note  to  one  Ladd,  and  represented  that  it  was  a  good  business 
note  and  owned  by  him  (Hale).  Ladd  bought  it  at  a  dis- 
count, and  Hale  indorsed  it.  Suit  was  brought  on  the  note, 
and  defendant  set  up  usury  as  a  defence.  The  court  held 
that  Hale  was  defendant's  agent,  and  that  he  was  bound  by 
Hale's  representations,  and  was,  therefore,  estopped  from  set- 
ting up  the  defence  of  usury.  BOOKES,  J.,  delivering  the 
opinion  of  the  court,  says  "  the  defendant  authorized  Hale  to 
negotiate  the  note  for  their  joint  benefit;  he  had  not  limited 
Hale's  powers  except  as  to  the  disposition  of  the  avails.  Hale 
was  sent  forth  with  what  purported  to  be  property,  with 
authority  and  directions  to  sell  it ;  not  special  but  general 
authority  ;  as  to  that  transaction  he  was  clothed  with  general 
powers.  *  *  *  It  is  said  that  an  agent,  having  power  to 
sell  goods,  without  express  restriction  as  to  the  mode,  may 
sell  by  warranty."  (6  Cow.,  354 ;  6  Hill,  336.) 

The  learned  judge  then  proceeds  to  show,  by  adjudged 
cases,  that  representations,  declarations  and  admissions  respect- 
ing the  subject-matter  of  the  agency  will  bind  the  principal 
when  the  acts  of  the  agent  bind  him.  He  then  proceeds  :  "It 
cannot  be  justly  said  that  the  representations  in  this  case  were 
not  within  the  scope  of  Hale's  agency,  which  was  to  nego- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  238 


Lessee  v.  Williams. 


tiate  a  sale  and  transfer  of  the  note ;  a  power  to  sell  implies 
the  right  to  use  the  ordinary  means  and  inducements  to 
accomplish  the  end.  The  principal  must  expect  that  the 
agent  will  speak  of  the  property,  its  situation,  quality,  &c. 
When  a  note  is  offered  for  sale,  what  questions  are  ordinarily 
put  in  regard  to  it  ?  Every  prudent  manx  before  purchasing, 
will  inquire  whether  it  is  a  valid  obligation  or  business  note, 
and  as  to  the  xesponsibility  of  the  parties  to  it.  Certainly 
these  are  elements  of  value,  and  are  proper  to  be  considered 
and  discussed  by  the  parties  on  the  negotiation  for  the  sale. 

In  Finn  v.  Harrison  (4  D.  &  E.,  177),  it  was  held  that  the 
indorsers  of  a  draft,  which  they  had  given  to  an  agent  to  get 
discounted,  were  bound  by  the  acts  and  representations  of  the 
agent  in  procuring  the  money  on  the  draft.  (Elwell  v.  Cham- 
lerlain,  2  Bosw.,  230 ;  Sanford  v.  Handy,  23  W.,  260 ; 
Smith  v.  Tracy,  36  N.  Y.,  79  ;  Paley  on  Agency,  197,  209, 
and  notes.) 

Choses  in  action  on  the  subjects  of  purchase  and  sale,  to  as 
great  if  not  a  greater  extent  than  any  other  description  of 
property,  and  the  ability  of  the  parties  to  them  to  pay,  is  as 
frequently  the  inducement  held  out  to  the  purchaser  to  buy, 
as  is  the  condition  or  quality  in  other  personal  property. 
Why  should  an  agent  be  able  to  bind  his  principal  by  a  war- 
ranty in  the  one  case  and  not  in  the  other  ?  Not  only  is  the 
agent's  warranty  binding,  but  his  representations  as  to  the 
condition  and  value  of  the  property  are  binding  upon 
the  principal.  I  am  unable  to  perceive  any  distinction 
between  the  power  of  the  agent  to  bind  the  principal  in  the 
different  kinds  of  property,  and  I  think  none  exists.  It  only 
remains  to  inquire  whether  the  guaranty  of  Slawson  must  be 
in  writing  in  order  to  render  it  valid.  The  statute  of  frauds 
requires  that  every  agreement  to  answer  for  the  debt,  &c.,  if 
another,  shall  be  in  writing  and  signed  by  the  party  to  be 
charged,  &c. 

A  contract  to  guaranty  the  payment  or  collection  of  a  debt 
contracted  by  another  is  an  agreement  to  answer  for  the  debt 
of  another ;  but  when  the  guarantee  is  given  on  the  transfer 

LANSING — VOL.  VI.          30 


234  CASES  IN  THE  SUPREME  COURT        [March, 


Lament  0.  Cheshire. 


by  the  guarantor  of  the  debt  in  payment  of  a  debt  or  other 
obligation  of  his  own,  the  contract  is  not  within  the  statute  of 
frauds.  This  was  decided  in  Brown  v.  Curtiss  (2  Cow.,  225). 
Some  doubt  was  thrown  over  the  case  by  the  cases  of  Brew- 
ster  v.  Lilew  (4  Seld.,  207),  and  by  Draper  v.  Snow  (20  1ST. 
Y.,  331).  But  the  doubt,  if  there  was  any,  is  removed  by  the 
case  of  Cardell  v.  McNeil  (21  K  Y.,  336),  in  which  the  doc- 
trine of  the  case  of  Brown  v.  Curtiss  was  recognized  and 
affirmed.  So  that  it  is  now  the  law  in  this  State,  whatever  it 
may  be  elsewhere,  that  a  parol  guaranty  of  the  payment  or 
collection  of  a  note  or  bill,  transferred  in  payment  for  pro- 
perty purchased  or  debt  due  by  the  guarantor,  is  not  within 
the  statute  of  frauds. 

If  the  foregoing  views  are  correct,  it  follows : 

1.  That  when  the  Arnold  note  was  sold  to  plaintiff  it  was 
the  property  of  defendant. 

2.  That  Slawson  sold  it  to  plaintiff  as  the  agent  of  the 
defendant,  with  a  guaranty  that  it  was  collectible. 

3.  That  as  such  agent  he  had  authority  to  give  such  guar 
anty,  and  defendant  was  bound  thereby. 

4.  That  such  guaranty  was  valid,  though  not  in  writing. 
The  plaintiff  was  entitled  to  recover  the  costs  of  the  action. 
(Masker  v.  Hotchkiss,  3  Keyes,  161.) 

The  motion  for  a  new  trial  ought  not  to  have  been  granted ; 
the  order  granting  it  must,  therefore,  be  reversed. 
Order  reversed. 


GEORGE  D.  LAMONT  v.  RICHARD  T.  CHESHIRE. 

* 

(GENERAL  TEBM,  FOURTH  DEPARTMENT,  MARCH,  1872.) 

Whether  that  clause  of  section  132  of  the  Code,  which  declares  a  grantee 
and  incumbrancer  whose  conveyance  or  incumbrance  is  recorded,  after 
filing  a  Its  pendens,  a  subsequent  purchaser  or  incumbrancer,  applies  to  a 
lis  pendens  filed  in  case  of  an  attachment,  doubted.  (Per  MULLIN,  P.  J.) 

And  qitere,  whether  the  application  of  the  clause  is  not  limited  to  actions 
of  foreclosure.  (Id.) 

Possession  of  real  property  is  notice,  to  a  purchaser  at  execution  sale  upon 


1872.]  OF  THE  STATE  OF  NEW  YORK.  235 


Lamont  v.  Cheshire. 


judgment  in  an  action  where  such  property  is  attached  and  a  lis  pendent 

filed,  of  the  possessor's  title. 
The  implied  notice  of  title  by  possession  has  the  same  effect,  in  such  case,  as 

in  the  case  of  a  conveyance. 
In  cases  where  an  attachment  is  issued,  sale  of  the  attached  property  under 

execution  upon  judgment  in  the  action  confers  no  greater  title  to  it  than 

the  debtor  had  at  the  time  the  judgment  was  docketed. 
And  (per  MULLIN,  P.  J.)  a  special  execution  should  be  issued  in  attachment 

cases,  directing  the  sale  of  the'debtor's  interest  in  the  attached  property  as 

of  the  day  of  the  levy  of  the  attachment. 
The  clause  of  section  132  (Code),  by  which  subsequent  purchasers  and 

incumbrancers  are  bound  by  all  proceedings  in  the  action  taken  after  the 

filing  of  the  lis  pendens,  to  the  same  extent  as  if  they  were  parties  to  the 

action,  is  not  applicable  to  attachment  cases.    (Per  MULLIN,  P.  J.) 

THIS  was  a  motion  by  the  defendant  for  a  new  trial  upon 
a  case  and  exceptions  ordered  to  be  heard  in  the  first  instance 
at  the  General  Term.  The  facts  are  stated  in  the  opinion. 

Z.  F.  Bowen,  for  the  defendant. 

T.  E.  Elsworth,  for  the  plaintiff. 

Present — MULLIN,  P.  J.  ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  On  the  22d  June,  1859,  John  S.  Harp 
became  seized  in  fee  of  the  premises  described  in  the  com- 
plaint. 

On  the  19th  October,  1859,  David  Harp  procured  an 
attachment  to  be  issued,  in  due  form  of  law,  against  said 
John  S.  Harp  as  a  non-resident  upon  an  alleged  indebtedness, 
theretofore  accrued,  of  $300  and  interest.  On  the  same  da/ 
the  sheriff  of  Niagara  county,  in  which  said  lands  were  situ- 
ated, by  virtue  of  said  attachment  seized  said  land. 

On  the  31st  January,  1860,  judgment  was  rendered  in  the 
action  in  behalf  of  said  David  Harp  for  $383.14  damages  and 
costs. 

On  the  same  19th  October,  1859,  the  same  sheriff  attached 
the  same  real  estate  upon  an  attachment,  issued  in  due  form 
of  law,  against  said  John  S.  Harp  in  favor  of  Hiram  Denni- 
son  for  the  sum  of  $1,118.87.  Judgment  was  entered  in  the 


236  CASES  IN  THE  SUPREME  COURT        [March, 

.  Lament  v.  Cheshire. 

said  action  on  the  31st  January,  1860,  for  $1,237.94  damages 
and  costs. 

Notices  of  Us  pendens  were  filed  in  these  actions  on  the 
26th  October,  1859,  in  the  office  of  the  clerk  of  Niagara 
county. 

On  the  16th  November,  1859,  George  W.  Smith  procured 
an  attachment,  in  due  form  of  law,  against  the  property  of 
said  John  S.  Harp  for  the  sum  of  $2,616.58 ;  and  on  the  same 
day  the  sheriff,  by  virtue  thereof,  attached  the  same  land. 

On  the  31st  January,  1860,  judgment  was  recovered  in  the 
action  in  favor  of  said  Smith  for  the  sum  of  $2,757.45  dama- 
ges and  costs. 

On  the  17th  November,  1859,  a  notice  of  Us  pendens  was 
duly  filed  in  the  office  of  the  clerk  of  Niagara  county. 

On  the  10th  February,  1860,  executions  issued  on  said 
three  judgments  to  the  sheriff  of  the  same  county.  These 
executions  commanded  the  sheriff  to  sell  the  real  estate  within 
his  county  belonging  to  said  John  S.  Harp  on  the  31st  Janu- 
ary, 1860,  or  at  any  time  subsequent. 

On  the  27th  March,  1860,  the  sheriff  sold  said  lands,  by 
virtue  of  said  executions,  to  the  plaintiffs  therein  for  the  sum 
of  $100.  A  certificate  of  said  sale,  signed  by  said  sheriff,  was 
recorded  in  the  clerk's  office  of  said  county  on  the  21st  May, 
1860. 

On  the  17th  September,  1859,  the  said  John  S.  Harp  con- 
veyed said  lands  to  the  defendant  in  this  action  by  warrantee 
deed  in  fee  simple ;  which  deed  was  duly  acknowledged  on 
the  same  day,  and  recorded  on  the  14th  November,  1859. 
The  consideration  for  said  conveyance  was  the  sum  of  $3,500. 
The  defendant  went  into  possession  of  said  land  upon  the 
delivery  of  said  deed,  and  has  ever  since  remained  in  posses- 
sion thereof. 

The  defendant,  after  he  acquired  title  to  said  land,  redeemed 
the  same  from  the  sale  made  by  said  sheriff ;  and  thereupon 
executions  were  again  issued  on  said  judgment,  and  the 
sheriff  again  sold  said  premises,  and  the  same  were  purchased 
by  the  plaintiff  for  the  sum  of  $1,000. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  237 

Lament  v.  Cheshire. 

The  sheriff  gave  him  a  certificate  of  such  sale,  and  the 
same  was  recorded  on  the  22d  August,  1861. 

On  the  27th  August,  1863,  the  sheriff  executed  a  deed  of 
said  premises,  in  pursuance  of  said  last  mentioned  sale,  to 
said  plaintiff,  which  was  duly  acknowledged  and  recorded  on 
the  17th  September,  1863. 

The  plaintiff  brought  this  action  to  recover  possession 
of  said  premises  from  the  defendant. 

On  proof  of  the  foregoing  facts  the  court  ordered  a  verdict 
in  favor  of  the  plaintiff,  and  directed  the  motion  for  a  new 
trial  to  be  heard  in  first  instance  at  the  General  Term. 

The  defendant's  title  to  the  premises  in  question  was 
acquired  -on  the  17th  September,  1859,  which  was  nearly  a 
month  prior  to  the  levy  on  the  attachments  under  which  the 
plaintiff  acquired  title.  This  would  be  conclusive  of  the 
defendant's  right  to  the  land  were  it  not  for  sections  231, 
232  and  132  of  the  Code. 

Section  231  provides  that  the  attachment  shall  require  the 
sheriff  to  attach  and  safely  keep  all  the  property  of  the 
defendant  within  his  county,  or  so  much  as  may  be  sufficient 
to  satisfy  the  plaintiff's  demand,  together  with  costs  and 
expenses. 

Section  232  requires  the  sheriff  to  proceed  upon  the  attach- 
ment in  all  respects  in  the  manner  required  by  law  in 
attachments  against  absent  debtors. 

The  attaching  creditor's  lien  dates  only  from  the  seizure 
by  the  sheriff. 

Section  132  of  the  Code  provides  that  whenever  a  warrant 
of  attachment  shall  be  issued  pursuant  to  its  provisions,  or  at 
any  time  afterward,  the  plaintiff  may  file  with  the  clerk  of 
each  county  in  which  the  property  is  situated  a  notice  of  the 
pendency  of  the  action,  containing  the  names  of  the  parties, 
the  object  of  the  action  and  the  description  of  the  property ; 
*  *  *  and  from  the  time  of  filing  only  shall  the  pendency 
of  the  action  be  constructive  notice  to  a  purchaser  or  incum- 
brancer  of  the  property  affected  thereby ;  and  every  person 
whose  conveyance  or  incumbrance  is  subsequently  executed 


238  CASES  IN  THE  SUPREME  COURT       [March, 

Lament  v.  Cheshire. 

or  subsequently  recorded  shall  be  deemed  a  subsequent  pur- 
chaser or  incumbrancer,  and  shall  be  bound  by  all  the  pro- 
ceedings taken  .af ter  the  filing  of  such  notice,  to  the  same 
extent  as  if  he  were  made  a  party  to  the  action. 

The  plaintiff  insists  that,  as  the  defendant's  deed  was  not 
recorded  until  about  a  month  after  filing  the  notices  of 
Us pendens  in  two  of  the  actions,  he  is,  as  to  the  plaintiff's 
attachment  and  proceedings  subsequent  thereto,  a  subsequent 
purchaser,  and  that  the  defendant's  title  to  the  real  estate 
was  swept  away  by  the  sale  and  conveyance  to  the  plaintiff 
by  the  sheriff. 

If  such  is  the  operation  of  the  provisions  of  the  Code  to 
which  reference  has  been  made,  if  the  rights  of  a  bonajide 
purchaser,  who  has  paid  the  full  value  of  the  land  purchased, 
are  rendered  subordinate  to  the  lien  of  a  creditor  that  does 
not  attach  to  the  property  until  after  the  purchaser  has 
acquired  his  title  and  gone  into  possession,  the  law  must  be 
pronounced  an  excessively  severe  one,  and  the  condition  of 
the  purchaser  an  exceedingly  hard  one.  But  if  the  legisla- 
ture has  so  provided,  their  will,  not  that  of  the  judges,  must 
have  its  way.  Fiat  lex  (non  justitid)  ruat  Ccelum. 

If  the  section  under  consideration  is  to  receive  the  con- 
struction that  is  put  upon  it  by  the  plaintiff's  counsel,  I  do 
not  see  how  bona  fide  purchasers  who,  for  any  cause,  are 
unable  to  record  their  deeds  before  attachments  are  issued 
and  notices  of  the  pendency  of  suits  filed,  are  to  avoid  the 
loss  of  the  purchase-money  paid,  if  their  grantors  are  owing 
debts  that  are  due. 

If  the  purchaser  lives  ten  miles  from  the  clerk's  office,  if 
the  messenger  sent  with  the  deed  to  procure  it  to  be  recorded 
is  taken  sick  or  injured  by  the  way,  if  the  deed  is  given  in 
the  evening,  and  the  deed  is  presented  to  the  clerk  for  record- 
ing ten  minutes  after  the  opening  of  the  office  the  following 
day,  and  an  attachment  has  been  obtained,  and  notice  of  Us 
pendens  filed  in  the  mean  time,  the  attaching  creditor  acquires 
a  preference,  and  the  purchaser's  title  is  subordinate  to  the 
lien  of  the  attaching  creditor.  Could  a  more  successful  way 


1872.  J  OF  THE  STATE  OF  NEW  YORK.  239 

Lamont ».  Cheshire. 

"  to  improve  gentlemen  out  of  their  estates  "  be  devised  than 
is  thus  afforded  ? 

The  owner  of  land  who  is  in  debt  can  find  no  easier  way 
to  pay  them  than  to  sell  it,  obtain  his  pay,  and  then  induce 
the  creditors  to  attach  the  land  before  the  purchaser's  deed 
can  be  recorded,  and  thus  appropriate  the  land  to  the  pay- 
ment of  his  debts  while  he  revels  on  the  purchase-money. 

If  any  reasonable  construction  could  be  given  to  section 
132  that  will  prevent  this  injustice,  and  close  the  door  against 
the  fraud  which  it  invites  and  protects,  it  should  be  given.  I 
am  quite  sure  the  legislature  never  intended  to  work  out  any 
such  mischief. 

Prior  to  1823  all  persons  were  charged  with  notice  of  the 
pendency  of  actions  affecting  real  property ;  and  any  rights 
acquired  in  land  after  the  commencement  of  an  action  affect- 
ing the  title  were  subordinate  to  those  of  the  plaintiff's  in  such 
action;  and  this,  although  the  purchaser  may  never  have 
heard  of  the  suit. 

To  remedy  this  injustice,  the  legislature  of  this  State,  in 
1823,  by  chap.  213,  §  11,  of  the  Laws  of  that  year,  provided 
that,  to  charge  subsequent  purchasers  with  notice  of  the  pen- 
dency of  an  action  in  equity  affecting  the  title  to  land,  the 
plaintiff  must  file  in  the  clerk's  office  of  the  county  in  which 
the  lands  to  be  affected  lay  a  notice  in  writing,  containing  a 
description  of  the  lands,  &c.  &c. 

After  such  a  notice  was  filed,  every  person  acquiring  any 
title  to  or  interest  in  the  lands  described  in  the  notice  took 
such  title  or  intei'est  in  subordination  to  the  rights  of  the 
plaintiff,  and  they  were  charged  with  knowledge  of  the  pro- 
ceedings, and  with  the  decree  in  the  action. 

If  a  defendant  could,  after  suit  brought  affecting  the  title 
to  land,  convey  the  same,  and  thereby  prevent  the  plaintiff 
from  obtaining  any  benefit  of  his  suit,  litigation  would  be 
either  interminable  or  worthless. 

As  it  would  be  impossible  to  ascertain  the  persons  who 
might  be  tempted  to  deprive  a  plaintiff  of  the  benefit  of  his 
euit,  no  injunction  could  be  obtained  to  restrain  them  from 


240 


Lament  t>.  Cheshire. 


committing  the  wrong ;  hence  a  notice  that  should  bind  all 
persons  was  indispensable. 

An  attachment  against  the  real  estate  of  a  debtor  would  be 
practically  valueless  if  the  law  did  not  furnish  some  means 
for  preventing  the  debtor  from  selling  or  incumbering  it ; 
hence  the  necessity  of  amending  section  132  of  the  Code  in 
1857,  so  as  to  provide  for  notice  of  the  pendency  of  the  action 
in  which  the  attachment  was  obtained. 

But  the  necessity  of  that  clause  in  the  section  that  provides 
that  every  person  whose  conveyance  or  incumbrance  is  sub- 
sequently executed  or  subsequently  recorded  shall  be  deemed 
a  subsequent  purchaser  or  incumbrancer  is  not  perceived 
when  applied  to  attachment  cases ;  and  so  unnecessary  and 
unjust  is  it,  if  so  applied,  that  I  entertain  very  serious  doubts 
whether  this  clause  was  designed  to  apply  to  attachment  cases. 

In  cases  of  foreclosure  of  mortgages  great  delay  and  annoy- 
ance were  occasioned  by  the  neglect  of  the  grantees  of  the 
mortgagor  to  put  their  conveyances  on  record  until  after 
judgment  of  foreclosure.  Being  put  on  record  before  sale, 
the  plaintiff  was  obliged  to  amend  by  bringing  in  new  par- 
ties, and  virtually  going  through  a  second  litigation. 

It  was  to  remedy  this  mischief  the  clause  in  question  was 
enacted,  and  for  that  purpose  it  is  appropriate  and  effective. 
It  would  be  very  convenient  for  sheriffs,  in  searching  for  pro- 
perty to  levy  upon  by  an  attachment,  to  be  informed  of  all 
pretended  liens  on  and  conveyances  of  the  lands  of  the  debtor ; 
but  so  would  it  be  in  the  case  of  executions.  Yet  the  law 
does  not  require  grantees  of  the  judgment  debtor,  nor  his 
creditors  by  judgment  or  otherwise,  to  furnish  any  evidence 
of  such  grants  or  liens. 

It  would  seem  to  be  more  necessary  in  the  case  of  judg- 
ments than  in  the  cases  of  attachments,  as  in  the  former  case 
a  transfer  of  title  is  to  be  made ;  in  the  latter,  only  a  lien 
acquired. 

It  is  not  necessary  to  the  decision  of  this  case  that  we 
should  go  the  length  of  holding  that  the  clause  of  section  132, 
defining  who  are  subsequent  purchasers  and  incumbrancers, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  241 


Lament  v.  Cheshire. 


should  be  limited  to  cases  of  foreclosure.  There  is  another 
principle  which,  if  applicable  to  the  case,  is  decisive  of  it  in 
favor  of  the  defendant. 

On  the  trial,  the  defendant  proved  that,  upon  the  execution 
and  delivery  of  the  deed  from  John  S.  Harp  to  him  of  the 
premises  in  question,  and  upon  payment  of  the  purchase- 
money,  he  took  possession  of  the  premises  so  conveyed  and 
has  ever  since  claimed  to  hold  and  own  the  same  under  said 
deed. 

His  deed  bears  date  the  17th  September,  1859 ;  the  attach- 
ment was  levied  on  the  17th  November  of  the  same  year. 
When  the  levy  was  made,  the  defendant  was  in  possession  of 
the  premises,  and  that  possession  was  notice  to  the  plaintiff 
and  all  other  persons,  not  only  of  his  possession  but  of  the 
title  under  which  he  occupied.  (4  Abbott's  Dig.,  title,  Record- 
ing Deeds,  §§  106,  107, 108 ;  6  id.,  §  1. 

If  the  plaintiff  claimed  under  a  subsequently  recorded  deed, 
there  would  be  no  doubt  but  that  the  defendant's  possession 
was  sufficient  notice  of  the  defendant's  prior  deed,  to  deprive 
the  plaintiff  of  any  advantage  arising  from  having  his  deed 
first  recorded. 

I  am  unable  to  discover  any  distinction  between  that  case 
and  that  of  a  creditor  attaching  the  land  of  his  debtor  after 
notice  of  a  prior  conveyance  to  a  bonafide  purchaser  for  value 
paid.  If  the  equities  could  be  measured,  I  apprehend  that 
of  the  attaching  creditor  would  be  the  least. 

The  creditor  seizes  the  interest  of  the  debtor,  whatever  it 
may  be,  and  he  obtains  no  greater  interest,  as  a  general  propo- 
sition, than  the  debtor  has  in  the  property,  and  could  not,  in 
any  case,  did  not  a  statute  afford  him  the  means  of  overriding 
the  interests  of  some  prior  purchaser  or  incumbrancer. 

I  do  not  find  that  this  question  has  ever  been  decided  or 
even  considered  in  this  State,  and  for  the  reason,  probably, 
that  until  the  amendment  of  section  132  of  the  Code,  requir- 
ing notice  of  lis  pendens  to  be  filed  in  attachment  cases,  the 
question  could  have  arisen. 

In  Massachusetts,  however,  attachments  have  been  long  in 

LANSING— VOL.  VI.        31 


242  CASES  IN  THE  SUPREME  COURT        [March, 

Lament  v.  Cheshire. 

use,  and  the  precise  point  now  under  consideration  has  been 
repeatedly  decided. 

In  that  State,  deeds  are  required  to  be  recorded,  and  when 
there  are  two  or  more  conveyances  of  the  same  land,  the  one 
first  recorded  obtains  the  preference  over  the  unrecorded  ones. 
(Farnsworth  v.  Child,  4=  Mass.,  63T.) 

The  court,  in  order  to  protect  innocent  purchasers  against 
fraud,  held  that  notice  to  the  subsequent  grantee  of  the  unre- 
corded conveyance,  deprived  him  of  the  benefit  the  statute 
gave  him,  by  reason  of  having  his  deed  first  recorded.  And 
possession  by  the  first  grantee  was  notice  to  the  subsequent 
grantee,  sufficient  to  prevent  the  latter  from  obtaining  a 
priority  by  recording  his  conveyance.  (Farnsworth  v.  Childf 
supra;  Dams  v.  Blunt,  6  Mass.,  487.) 

It  will  be  seen  that  the  law  in  regard  to  recording  deeds, 
and  what  constitutes  notice  to  subsequent  purchasers  of  prior 
conveyance  of  the  same  land,  are  identical  with  our  own. 

In  PresGott  v.  Heard  (10  Mass.,  60),  it  was  held  that  when 
a  judgment  creditor  had  notice  of  an  alienation  of  his  debtor's 
land  by  a  deed  unregistered,  and  of  long  continued  possession 
under  it,  yet  caused  the  land  embraced  in  such  deed  to  be  sold 
to  satisfy  his  judgment,  he  obtained  no  title  to  the  land  through 
such  sale. 

The  precise  point  we  are  considering  was  decided  in  Priest 
v.  Rice  (1  Pick.,  164).  The  action  was  in  the  nature  of  eject- 
ment to  obtain  possession  of  certain  premises  that  plaintiff 
had  purchased  of  one  Hapgood.  The  deed  was  dated  the 
llth  December,  1820,  and  recorded  on  the  28th  of  the  same 
month. 

On  the  18th  December,  the  defendant  caused  the  land  to 
be  attached,  and  the  action  was  prosecuted  to  judgment  and 
execution  levied  on  the  land  within  the  time  required  by  the 
statute. 

On  the  trial  the  plaintiff  offered  to  prove  that  at  the  time 
the  defendant  obtained  the  attachment,  and  when  it  was  levied, 
he  knew  of  the  conveyance  to  plaintiff.  This  evidence  wa? 
objected  to  by  the  defendant  but  received. 


1872.]  OF  THE  STATE  OP  NEW  YORK.  243 


Lament 0.  Cheshire. 


The  jury  were  instructed  that  if  the  defendant,  when  his 
attachment  was  issued  and  levied,  knew  of  the  conveyance  to 
the  plaintiff,  they  should  find  a  verdict  for  the  plaintiff.  They 
did  so  find. 

The  defendant  moved  for  a  new  trial,  on  the  ground  that 
the  evidence,  so  as  aforesaid  offered  on  the  part  of  the  plain- 
tiff and  received,  was  incompetent.  The  motion  was  denied. 

PABKER,  G.  J.,  delivering  the  opinion  of  the  court,  says : 
The  effect  of  a  conveyance  actually  made  and  delivered,  and 
known  to  be  so  by  a  creditor,  is  the  same  under  the  construc- 
tion that  has  been  given  to  the  statute  in  relation  to  such, 
creditor  as  it  would  be  in  relation  to  a  second  purchaser  under 
like  circumstances.  He  then  proceeds  to  say  that  the  court 
has  in  several  cases  held  the  creditor  to  stand  on  the  same 
footing  with  a  second  purchaser,  as  to  the  effect  of  notice  of  a 
prior  conveyance.  He  then  says  the  reason  is  the  same  in 
both  cases,  for  if  a  creditor  whose  debt  is  due  will  stand  by 
and  suffer  his  debtor  to  sell  his  land  and  recover  the  value  of 
it  from  one  who  knows  not  of  his  claim  or  of  his  intention  to 
bring  an  action  upon  it,  and  will  afterward  attach  the  same 
land,  there  is  a  constructive  fraud  upon  the  purchaser  which, 
ought  not  to  prejudice  his  title.  The  execution  and  delivery 
of  the  deed  completes  the  transfer  from  the  grantor  to  the 
grantee.  The  registry  is  to  give  notice,  that  others  may  not 
be  prejudiced ;  actual  notice  proved  is  to  the  person  affected 
by  it  as  useful,  and  ought  to  be  attended  with  the  same  conse- 
quence as  public  notice  in  the  registry,  and  implied  notice 
arising  from  possession  under  the  deed  is  as  effectual  as  actual 
notice. 

The  same  point  was  decided  in  Chamberlain  v.  Thompson 
(10  Conn.,  243). 

Deeming  these  decisions,  of  so  learned  and  able  courts  as 
the  Supreme  Courts  of  Massachusetts  and  Connecticut,  con- 
clusive, I  will  discuss  the  question  no  further. 

There  are  other  questions  argued  by  counsel  which  I  shall 
briefly  consider.  The  defendant's  counsel  insists,  that  as  the 
sheriff  derived  his  power  to  sell  the  land  from  the  executions 


244  CASES  IN  THE  SUPREME  COUKT      [March, 

Lament  v.  Cheshire. 

delivered  to  Mm  on  the  judgments  in  the  attachment  cases, 
and  as  they  directed  him  to  sell  the  interest  that  Harp  had  in 
the  land  in  question  on  the  31st  January,  1860,  the  day  on 
which  the  judgments  were  docketed,  the  plaintiff,  as  pur- 
chaser, acquired  no  title  to  or  interest  in  the  lands,  aa  of  any 
day  anterior  thereto ;  and  as  that  day  was  long  after  the 
recording  of  defendant's  deed,  the  plaintiff  acquired  no  title 
to  or  interest  in  the  land  under  such  sale,  or  the  deed  given 
in  pursuance  of  it. 

The  Code  does  not  provide  any  mode  of  selling  real  estate 
seized  under  attachment.  The  creditor  has  but  two  ways  to 
perfect  his  lien :  One  is  by  sale  on  execution  under  the  Revised 
Statutes,  the  other  in  the  manner  provided  for  the  sale  of 
real  estate  by  the  same  statutes  in  proceedings  against 
absconding,  concealed  and  non-resident  debtors. 

By  section  237  of  the  Code,  the  sheriff  is  required,  in  order 
to  satisfy  any  balance  that  may  remain  due  to  the  attaching 
creditor  after  applying  the  proceeds  of  perishable  property 
that  has  been  attached  and  sold,  to  sell  under  the  execution 
so  much  of  the  attached  property  as  may  be  necessary,  &c. 
As  no  other  execution  is  provided  for,  the  ordinary  execution 
that  issues  on  a  judgment  must  be  the  one  intended.  By  that 
the  sheriff  is  required  to  sell  the  interest  which  the  judgment 
debtor  had  in  real  estate  on  the  day  of  docketing  the  judg- 
ment, or  at  any  time  subsequent.  The  sheriff  has  no  authority 
to  sell  except  such  as  is  derived  from  his  process. 

As  the  judgment  was  docketed  on  the  31st  January,  1860, 
and  the  attachment  levied  on  the  18th  November,  1859,  it 
follows  that  the  plaintiff  acquired  by  his  purchase  no  interest 
in  the  land  of  a  day  earlier  than  the  31st  January. 

It  would  seem  that  the  legislature  must  have  intended  that 
a  special  execution  authorizing  a  sale  of  the  debtor's  interest 
as  of  the  day  of  the  levy  of  the  attachment  might  be  issued  as 
a  sale  as  of  that  date  seems  indispensable  in  order  to  give  the 
creditor  the  full  benefit  of  his  lien.  But  no  such  execution 
is  authorized  and  none  can  be  issued  unless  the  courts  assume 
legislative  power  and  authorize  it.  If,  however,  such  an  exe- 


W72.]  OF  THE  STATE  OF  NEW  YORK.  245 

Lamont  v.  Cheshire. 

cution  cannot  issue,  a  court  of  equity  may  protect  the  credi- 
tor's lien  from  the  levy  of  the  attachment  to  the  recovery  of 
the  judgment. 

The  plaintiff,  having  sold  on  his  execution  in  pursuance  of 
the  Revised  Statutes,  acquired  no  interest  in  the  property 
earlier  than  31st  January. 

I  am  of  opinion  that  in  cases  in  which  an  attachment  is 
issued,  the  sale  on  the  execution  ought  not  to  have  the  force 
and  effect  of  a  sale  upon  the  execution  provided  by  the  Code, 
but  should  have  the  force  and  effect  of  a  sale  by  trustees  in 
cases  of  attachments  against  absconding  debtors.  I  am  led  to 
this  conclusion  by  two  considerations,  and  these  are : 

1st.  That  if,  as  I  have  shown,  the  sale  is  made  in  the  ordi- 
nary way,  the  creditor  loses  the  benefit  of  the  lien  acquired  by 
his  attachment,  as  the  sale  can  only  be  of  the  interest  the 
debtor  had  on  the  day  of  docketing  the  judgment,  while  the 
sale  by  the  trustees  is  the  interest  of  the  debtor  on  the  day 
the  attachment  was  levied.  Such  a  sale  fully  protects  the 
creditor,  and  avoids  the  necessity  of  a  resort  to  a  court  of 
equity  to  protect  and  enforce  the  lien  from  the  levy  of  the 
attachment  until  the  docketing  of  the  judgment. 

2d.  The  Revised  Statutes  reserve  to  every  debtor  whose 
land  is  sold  on  execution  the  right  to  redeem  it  for  the  term 
of  twelve  months  from  the  sale. 

This  right  of  redemption  is  a  valuable  interest  in  the  land 
and  may  be  seized  on  an  attachment  by  the  debtor's  creditors. 

Now,  unless  the  creditor  bids  at  the  sale  on  the  execution 
the  full  amount  of  his  debt,  he  will  lose  so  much  as  the 
amount  falls  short  of  the  debt,  and  the  excess  of  the  value  of 
the  premises,  over  the  amount  bid,  is  taken  by  the  attaching 
creditor. 

This  case  affords  a  striking  illustration  of  the  loss  the  first 
attaching  creditor  may  sustain. 

Assuming  the  land  to  be  worth  the  amount  paid  for  it  by 
the  defendant,  the  debtor  had  an  interest  in  it  of  $2,500  over 
and  above  the  plaintiff's  bid;  this  a  subsequent  attaching 
creditor  would  have  been  entitled  to. 


246  CASES  IN  THE  SUPREME  COURT       [March,. 

Lament  v.  Cheshire. 

It  may  be  said  that  it  is  the  fault  of  the  creditor  if  he 
allows  the  land  to  be  bid  off  for  less  than  the  amount  of  his 
debt.  But  it  must  be  remembered  that  the  bidders  at  such  a 
sale  are  bidding  entirely  in  the  dark ;  they  cannot  know  accu- 
rately the  extent  of  the  claims  against  it  or  the  amount  of 
litigation  they  may  be  compelled  to  engage  in,,  in  order  to 
perfect  title  to  the  property.  Hence  it  is  that  creditors  rarely 
bid  the  amount  of  their  liens  on  sales  of  land  on  execution. 
When  the  sale  is  without  the  right  of  redemption,  each  bidder 
is  reasonably  certain  that  the  title  acquired  is  valid,,  or,  if  there 
are  any  defects  in  it,  he  knows  or  may  know  what  they  are. 

It  seems  to  me,  therefore,  that  a  special  execution  should 
be  issued  in  attachment  cases,  and  that  such  execution  should 
direct  the  sale  of  the  debtor's  interest  in  the  attached  prop- 
erty as  of  the  day  of  the  levy  of  the  attachment. 

I  am  of  opinion  that  the  plaintiff  acquired  no  title  by  the 
sale  under  which  he  claims. 

The  defendant's  counsel  insists  that  as,  by  §  132  of  the  Code,, 
subsequent  purchasers  and  incumbrancers  are  bound  by  all  pro- 
ceedings in  the  action  taken  after  the  filing  of  the  notice  of 
Us  pendens  to  the  same  extent  as  if  they  were  parties  to  the 
action,  the  notice  is  of  no  force  or  effect  upon  the  defendant 
in  this  action,  as  the  judgment  in  the  action,  had  he  been  a 
party,  would  not  have  bound  him  or  affected  him  in  any 
manner. 

I  do  not  think  this  clause  of  the  section  has  any  application 
to  attachment  cases.  But  the  clause  of  the  section  that  pro- 
vides that  a  purchaser  or  incumbrancer  whose  conveyance  is 
executed  or  recorded  after  filing  the  notice  of  Us  penden,  is  a 
subsequent  incumbrancer  or  purchaser,,  does  affect  him  very 
seriously. 

If  the  grantee  who  has  not  recorded  his  deed  is  a  purchaser 
subsequent  to  the  attaching  creditor,  it  necessarily  follows 
that  he  takes  the  land  subject  to  the  creditor's  lien,  and  that 
result  does  not  depend  upon  the  event  of  the  action  unless 
the  creditor  is  wholly  defeated,  but  upon  the  express  provision? 
of  the  statute-. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  247 


Pullar  v.  Easton. 


I  cannot  agree  with  the  counsel  that  the  clause  in  question 
conflicts  with  any  provision  of  the  Constitution. 

Substantially  the  same  provision  is  contained  in  the  record- 
ing acts,  yet  no  one  has  ever  seriously  claimed  the  legislature 
had  not  power  to  subordinate  the  rights  acquired  under  an 
unrecorded  deed  to  those  under  one  that  has  been  recorded, 
although  the  former  may  have  been  first  executed  and 
delivered.  The  motion  for  a  new  trial  must  be  granted^  costs 
to  abide  event. 

New  trial  granted. 


WILLIAM  PULLAK  v.  HAKVEY  P.  EASTON  et  al. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  NOVEMBER,  1871.) 

Plaintiff  contracted  with  defendants  to  work  for  them  for  three  years  at  a 
specified  price,  and  was  to  have  the  right  to  use  the  house  upon  the  pre- 
mises where  he  was  to  labor,  for  himself  and  family  to  live  in,  for  the  same 
term.  And  it  was  further  agreed  between  them  as  follows :  "  That  should 
the  party  of  the  first  part  (the  defendants)  sell  the  premises  before  the 
expiration  of  this  contract,  they  are  to  pay  the  said  P.  (the  plaintiff)  the 
sum  of  three  hundred  (300)  dollars,  provided  said  P.  cannot  make  a  satis- 
factory bargain  with  the  purchaser  to  stay  on  the  premises."  Before  the 
expiration  of  the  three  years  the  defendants  sold  and  conveyed  the  premi- 
ses and  put  the  purchaser  into  possession.  Plaintiff  continued  on  the 
premises  in  the  employ  of  the  purchaser ;  and  the  house,  up  to  the  time 
of  trial  of  this  action,  which  was  brought  to  recover  the  stipulated  sum 
of  $300.  When  the  purchaser  went  into  possession,  he  proposed  to  plain- 
tiff to  continue  him  in  his  employ,  on  the  terms  prescribed  in  the  con- 
tract, and  plaintiff  refused  to  accept  such  proposition,  but  offered  to  stay 
for  the  residue  of  the  term,  on  other  terms  and  conditions  which  he  sub- 
mitted in  writing  to  the  purchaser,  who  refused  to  accept  the  same,  and 
plaintiff  continued  to  work  for  the  purchaser,  without  any  specific  agree- 
ment between  them  as  to  the  terms  of  his  employment  up  to  the  time  of 
the  trial. 

Held,  that  plaintiff  having  continued  to  remain  on  the  premises  and  work 
for  the  purchaser,  and  being  entitled  to  receive  for  his  services  what  they 
were  worth,  must  be  deemed  to  have  made  with  the  purchaser  a  contract 
satisfactory  to  himself,  and  therefore  he  could  not  recover. 

As  plaintiff  had  been  offered  by  the  purchaser  the  same  terms  contracted 
for  by  him  with  the  defendants,  he  would,  it  seeins,  be  deemed  in  law  to 


lM8  CASES  IN  THE  SUPREME  COURT          [Nov., 

Pullar  v.  Easton. 

have  refused  a  "  satisfactory  "  offer  within  the  scope  and  meaning  of  the 
contract  provision. 

Held,  also,  that  the  intention  of  the  parties  to  the  contract  was  to  indemnify 
the  plaintiff  against  loss  and  damage  in  case  he  should  be  thrown  out  of 
employment,  and  a  place  to  live  in  on  the  premises  by  means  of  defend- 
ants' sale  of  them  before  the  expiration  of  the  term,  and  to  fix  and  settle 
the  measure  of  such  loss  and  damage  in  such  event ;  and  not  to  enable 
the  plaintiff  to  speculate  or  make  a  profit  to  himself  by  exacting  better 
terms,  or  such  other  terms  as  he  might  choose  to  dictate. 

MOTION  for  a  new  trial  upon  a  case  and  exceptions,  ordered 
to  be  heard  in  the  first  instance  at  the  General  Term.  The 
facts  are  stated  in  the  opinion. 

D.  J.  Sunderlin,  for  the  plaintiff. 

H.  M.  Stewart,  for  the  defendant. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ . 

By  the  Court — JOHNSON,  J.  By  the  contract  on  which  this 
action  is  brought,  the  plaintiff  was  to  work  for  the  defend- 
ants for  the  term  of  three  years  at  a  price  specified,  and  had 
the  right  in  addition  to  use  the  dwelling-house  on  the  premi- 
ses where  he  was  to  labor,  for  himself  and  family  to  live  in, 
for  the  same  term. 

The  concluding  part  of  the  contract  is  as  follows :  "  It  is 
further  agreed  that  should  the  party  of  the  first  part  sell  said 
premises  before  the  expiration  of  this  contract,  they  are  to 
pay  said  Pullar  the  sum  of  three  hundred  (300)  dollars,  pro- 
vided said  Pullar  cannot  make  a  satisfactory  bargain  with  the 
purchaser  to  stay  on  the  premises." 

The  contract  was  entered  into  the  first  of  May,  1868.  On 
the  17th  of  July,  1869,  the  defendants  sold  and  conveyed  the 
premises  and  put  the  purchaser  in  possession. 

The  plaintiff  remained  and  continued  on  the  premises  in 
the  employ  of  the  purchaser,  and  in  the  house  up  to  the  time 
this  action  was  brought  and  was  there  at  the  time  of  the  trial 
of  the  action.  The  action  was  brought  upon  the  provision 
of  the  contract  above  recited  to  recover  the  stipulated  sum 


1871.]  OF  THE  STATE  OF  NEW  YORK.  249 

Pullar  v.  Easton. 

of  $300.  The  question  is  whether  the  contingency  upon 
which  the  defendants  were  to  become  liable  to  pay  had  hap- 
pened when  the  action  was  brought. 

It  appears  from  the  evidence  on  the  part  of  the  plaintiff, 
that  when  the  purchaser  of  the  premises  went  into  possession 
he  proposed  to  the  plaintiff  to  continue  him  in  his  employ  on 
the  same  terms  mentioned  and  prescribed  in  the  contract,  and 
that  the  plaintiff  refused  to  accept  such  proposition,  but 
offered  to  stay  for  the  residue  of  the  term  on  other  terms 
and  conditions  which  he  deemed  more  advantageous  to  him- 
self. 

The  plaintiff  submitted  his  propositions  in  writing  to  the 
purchaser  on  the  llth  of  October,  1869,  and  the  purchaser 
refused  to  accept  the  same,  and  no  definite  agreement  or 
arrangement  was  made.  The  plaintiff,  however,  still  contin- 
ues to  reside  there  and  to  work  in  the  same  employment  for 
the  purchaser  without  any  agreement  in  regard  to  compensa- 
tion except  such  as  the  law  will  imply.  Upon  this  state  of 
facts  I  am  of  opinion  that  the  contingency  on  which  the 
defendants  were  to  pay  the  stipulated  sum  of  $300  has  not 
happened.  This  stipulation  between  the  parties  must  have  a 
reasonable  interpretation,  so  as  to  conform  to  the  manifest 
intention  of  the  parties,  if  the  language  employed  by  them 
will  admit  of  such  interpretation. 

The  clear  and  manifest  intention  of  the  parties  in  this  stipu- 
lation was  to  indemnify  the  plaintiff  against  loss  and  damage 
in  case  he  should  be  thrown  out  of  employment  and  a  place 
to  live  in  on  those  premises  by  means  of  their  sale  of  the  same 
before  the  expiration  of  the  term,  and  to  fix  and  settle  the 
measure  of  such  loss  and  damage  in  such  event.  It  was 
clearly  no  part  of  the  object  or  purpose  of  this  stipulation  to 
enable  the  plaintiff  to  speculate,  or  make  a  profit  to  himself, 
by  exacting  better  terms,  or  such  other  or  different  terms  as 
he  might  choose  to  dictate.  Such  a  construction  of  this  pro- 
vision would  render  this  stipulated  sum  a  mere  bonus,  as  it 
would  enable  the  plaintiff  to  exact  it  at  his  pleasure  without 
any  consideration  of  loss  or  injury  to  his  interests  whatever. 
LANSING — VOL.  VI.  32 


250  CASES  IN  THE  SUPREME  COURT         [Nov., 


Pullar  v.  Easton. 


The  proviso  is,  that  "  he  cannot  make  a  satisfactory  bargain 
with  the  purchaser,"  not  that  he  will  not.  How  was  it 
intended  that  it  should  be  satisfactory  ?  Surely  not  to  the 
plaintiff's  desires,  or  greed  of  gain,  but  reasonably  satisfac- 
tory, according  to  the  usual  compensation  for  such  labor,  and 
the  standard  they  had  fixed  between  themselves  by  the  agree- 
ment of  which  this  provision  was  a  part.  A  bargain  on  the 
same  terms  would  be  deemed  in  law  a  satisfactory  bargain, 
within  the  scope  and  meaning  of  this  provision.  This  wag 
offered  and  refused  by  the  plaintiff.  It  is  not  true  therefore 
that  the  plaintiff  could  not  make  "  a  satisfactory  bargain  with 
the  purchaser  to  stay  on  the  premises,"  within  the  true  intent 
and  meaning  of  those  terms.  The  agreement  he  entered  into 
with  the  defendants  was  such  as  he  chose  to  make,  and  must 
be  deemed  to  have  been  a  satisfactory  one  to  him,  and  it  was 
in  view  of  the  terms  of  that  agreement  and  as  part  of  it  that 
the  provision  in  question  was  inserted.  The  term  "  satisfac- 
tory" must  be  interpreted  and  defined  by  its  connection  with 
the  contract  and  the  surrounding  circumstances.  But  again, 
the  plaintiff  has  not  lost  either  employment  on  the  premises 
or  a  dwelling  place  for  himself  and  family.  He  still  contin- 
ues there  as  before,  but  whether  on  more  or  less  advantageous 
terms  than  were  secured  to  him  by  the  contract,  or  than  would 
have  been  secured  to  him  had  his  propositions  been  accepted, 
does  not  appear  and  cannot  be  shown.  What  the  law  will 
award  him  as  a  reasonable  compensation,  in  case  of  disagree- 
ment between  him  and  his  employer,  is  as  yet  unknown. 
They  have  been  unable  thus  far  to  agree  upon  specific  terms, 
but  have  consented  to  continue  the  relation  upon  such  terms 
as  the  law  will  imply. 

As  the  plaintiff  remains  on  the  premises  and  continues  in 
the  employment  of  the  purchaser  on  such  terms,  the  law  will 
presume  them  to  be  "satisfactory"  and  that  he  is  content 
with  the  arrangement  within  the  purview  of  the  contract. 
The  law  certainly,  as  we  must  presume,  will  give  the  plaintiff 
all  he  ought  justly  to  have  by  way  of  compensation,  and  com- 
pel him  to  be  satisfied  with  it.  There  is  nothing  in  the  case 


1872.]  OF  THE  STATE  OF  3STEW  YORK.  251 

Buck  v.  The  City  of  Lockport. 

to  show  that  the  plaintiff  has  not  remained  on  the  premises, 
in  the  employment  of  the  purchaser,  voluntarily  and  from 
choice  and  not  from  necessity,  or  from  inability  to  obtain 
other  employment. 

On  the  whole  case  we  think  that  no  cause  of  action  waa 
made  out  by  the  evidence,  and  that  the  plaintiff  was  properly 
nonsuited.  A  new  trial  must  therefore  be  denied. 

New  trial  denied. 


JOHN  L.  BUCK,  Eespondent,  v.  THE  Cnr  OF  LOCKPOBT, 
Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAY,  1872.) 

The  charter  of  the  city  of  Lockport  provides  for  the  presentation  of 
accounts  against  the  city  to  the  common  council,  and  that  they  shall  bo 
referred  to  a  committee  who  shall  examine  into  them  and  report  favor- 
ably or  adversely  to  their  allowance,  with  their  reasons ;  and  that  the 
common  council  shall  then  hear,  examine  and  determine  upon  the  same, 
in  like  manner  as  a  board  of  town  auditors.  If  the  claim  is  allowed,  the 
common  council  are  to  make  an  order  for  its  payment,  &c. 

Held,  an  account  against  the  city  having  been  presented  to  the  common 
council  and  by  them  referred  to  the  proper  committee,  who  did  not 
report  thereupon  for  more  than  seven  months  after  its  presentation,  that 
the  claimant  was  not  obliged  to  proceed  by  mandamus  to  compel  tht 
common  council  to  examine  and  allow  the  claim  and  make  an  order  foi 
its  payment,  but  that  an  action  would  lie  therefor  against  the  city. 

The  case  of  corporations  and  ministerial  officers  is  an  exception  to  the 
general  rule  that  a  mandamus  will  not  lie  where  the  party  has  a  remedy 
by  action.  They  may  be  compelled  to  exercise  then-  functions  according 
to  law  by  mandamus,  even  though  the  party  has  another  remedy  by 
action  for  neglect  of  duty. 

APPEAL  from  a  judgment  of  the  County  Court  of  Niagara 
county,  affirming  the  judgment  of  a  Justices'  Court.  The  facts 
are  stated  in  the  opinion. 

James  F.  Fitts,  for  the  appellant. 

John  L.  Buck,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 


252  CASES  IN  THE  SUPREME  COURT          [May, 

Buck  v.  The  City  of  Lockport. 

By  the  Court — JOHNSON,  J.  This  is  an  appeal  from  a  judg- 
ment of  the  County  Court,  of  Niagara  county,  affirming  the 
judgment  of  a  Justices'  Court.  The  action  was  upon  a  contract 
between  the  plaintiff  and  the  common  council  of  the  city,  by 
which  the  former  rented  to  the  latter  certain  premises  to  be 
used  as  a  pound  for  the  impounding  of  animals  by  the  cor- 
poration. The  contract  was  concluded  on  the  14th  of  June, 

1869.  The  rent  agreed  upon  was  twenty-five  dollars,  to  be 
paid  the  1st  of  January,  1 870. 

On  the  4th  of  April,  1870,  the  plaintiff  presented  his  claim 
for  rent  to  the  common  council  of  the  city,  and  it  was  by 
them  referred  to  the  committee  of  that  body  on  accounts. 

Nothing  more  was  done  with  it ;  and  on  the  4th  of  Novem- 
ber following  the  plaintiff  again  presented  the  same  account 
in  due  form. 

No  order  of  the  common  council  was  made  for  the  pay- 
ment of  the  claim,  nor  warrant  drawn  upon  the  treasurer, 
according  to  the  provisions  of  the  charter,  and  the  plaintiff 
failed  wholly  to  obtain  payment  by  that  means.  This  action 
was  commenced  on  the  26th  of  November,  1870,  nearly  eleven 
months  after  the  demand  had  become  due  and  payable  by  the 
terms  of  the  agreement.  By  the  city  charter  the  common 
council  are  authorized  to  provide  and  establish  a  public  pound. 

On  the  part  of  the  defendant  it  was  shown  that  the  com 
inon  council,  on  the  12th  of  July,  1869,  caused  the  annual 
tax  to  be  levied  for  the  payment  of  expenses  and  claims  to 
the  amount  of  $16,500,  which  was  the  full  amount  they  were 
authorized  to  raise  in  that  way  by  the  charter,  which  amount 
was  collected  and  paid  into  the  treasury,  and  that  the  sum  of 
$8,120.82  was  received  and  paid  into  the  treasury  from  other 
sources.  It  was  further  shown  that,  on  the  1st  of  January, 

1870,  the  general  funds  in  the  treasury  had  been  overdrawn, 
and  so  continued  through  the  fiscal  year ;  and  that,  on  the 
12th  of  September,  1870,  the  common  council  again,  by  reso- 
lution, caused  to  be  levied  the  sum  of  $16,500,  in  pursuance 
of  their  powers,  under  the  charter. 

B}*  the  charter  it  is  provided  that  all  accounts  and  claims 


1872.]  OF  THE  STATE  OF  NEW  YORK.  253 

Buck  v.  The  City  of  Lockport. 

against  the  city  shall  be  presented  to  the  common  council ; 
and  that  the  same  shall,  by  that  body,  be  referred  to  the 
standing  committee  on  accounts,  whose  duty  it  is  to  examine 
into  said  accounts  and  report  thereon  to  the  common  council, 
either  favorably  or  adversely,  with  their  reasons ;  and  the 
common  council  is  then  to  hear,  examine  and  determine  the 
same,  in  like  manner  as  a  board  of  town  auditors.  If  the 
claim  is  allowed  or  any  part  thereof,  the  common  council  is 
then  to  make  an  order  for  its  payment,  upon  which  the  clerk 
of  that  body  draws  and  signs  a  warrant  on  the  treasurer, 
which  is  to  be  countersigned  by  the  mayor  of  the  city  before 
the  amount  allowed  can  be  paid. 

It  is  contended  on  behalf  of  the  defendant  that  an  action 
for  a  demand  or  claim  of  the  kind  cannot  be  maintained 
against  the  corporation ;  that  the  city  stands  in  respect  to 
such  claims  on  the  same  footing  with  counties  of  the  State ; 
and  that  the  only  remedy  of  a  creditor  of  this  kind  is  by  man- 
damus, to  compel  the  common  council  to  proceed  and  examine 
and  allow  the  claim,  and  make  the  order  for  its  payment.  In 
respect  to  counties,  it  has  been  held  that  an  action  for  such  a 
cause  cannot  be  maintained;  but  that  the  remedy  of  a  party  is 
by  mandamus  to  compel  the  board  of  supervisors  to  discharge 
the  duty  which  the  law  imposes  upon  it  in  regard  to  claims 
against  their  county. 

This  is  upon  the  ground  that  counties  are  political  divisions 
of  the  State,  possessing  and  exercising  a  measure  of  its  sove- 
reignty, and  that  the  only  means  the  law  has  provided  for  the 
payment  and  satisfaction  of  such  claims  against  the  county  is 
to  have  them  presented  to  the  board  of  supervisors,  who  are 
required  to  "examine,  settle  and  allow"  all  such  as  are 
chargeable  against  the  county,  and  "  direct  the  raising  of  such 
sums  as  may  be  necessarv  to  defray  the  same  "  b}r  tax.  (Brady 
v.  The  Supervisors  of  New  York,  2  Sand.,  460;  S.  C.,  10  N. 
Y.,  260 ;  Martin  v.  Supervisors  of  Greene  County,  29  N.  Y., 
645  ;  People  v.  Supervisors  of  New  York,  32  id.,  473 ;  Peo- 
ple v.  Supervisors  of  Delaware  County,  45  id.,  196 ;  McClure 
v.  Board  of  Supervisors  of  Niagara  County,  50  Barb.,  594.) 


§54  CASES  IN  THE  SUPREME  COURT          [May, 

Buck  «.  The  City  of  Lockport. 

This  rule  is  founded  in  considerations  of  public  policy  and 
expediency,  and  proceeds  upon  the  same  principle  with  that 
which  refuses  to  allow  an  individual  citizen  to  have  a  right  of 
action  against  the  State  for  claims  against  it,  but  provides  for 
the  payment  of  all  such  claims  by  means  of  official  audit, 
appropriation  acts,  taxation,  and  warrants  upon  the  treasurer. 

But  this  principle  has  never  been  fully  extended  to  village 
or  city  corporations  existing  and  acting  under  special  charters. 
In  respect  to  such  corporations  the  rule  extends  no  further 
than  to  exempt  them  from  liability  to  actions  for  the  recovery 
of  such  claims,  primarily  or  in  the  first  instance.  The  law 
presumes,  in  respect  to  all  such  claims,  that  they  are  contracted 
or  created  in  reference  to  the  power  of  the  corporation,  and 
the  ways  and  means  at  its  command  of  obtaining  funds  for 
payment,  and  will  not  allow  such  bodies  to  be  harassed  by 
actions  unless  they  refuse  or  fail  to  exercise  their  power,  or  to 
use  the  means  at  their  command  to  enable  them  to  make  pay- 
ment and  satisfaction  in  the  prescribed  form.  But  if  they 
refuse  or  neglect  to  put  the  proper  machinery  in  motion  to 
raise  the  necesary  funds,  or  to  put  the  claims  presented  in 
proper  shape  for  liquidation  and  payment,  then^the  law  gives 
the  creditor  his  remedy  by  action  to  compel  payment. 

This  rule  has  been  established  and  is  illustrated  by  many 
decisions  in  the  courts  of  this  State.  (McCulloch  v.  The 
Mayor,  c#c.,  of  Brooklyn,  23  Wend.,  459 ;  Gumming  v.  The 
Mayor,  <&c.,  of  Brooklyn,  11  Paige,  596 ;  Beard  v.  The 
City  of  Brooklyn,  31  Barb.,  142;  Ganson  v.  The  City  of 
Buffalo,  1  Keyes,  454 ;  Baldwin  v.  The  City  of  Oswego,  2 
Keyes,  132.) 

Here,  it  must  be  admitted,  the  common  council  have  been 
guilty  of  great  delay  and  negligence,  or  worse,  in  omitting  to 
put  the  plaintiff 's  claim  in  a  proper  shape  to  render  it  paya- 
ble in  the  ordinary  and  usual  way  after  it  was  presented. 

There  was  in  fact  nothing  for  them  to  do  but  to  order  its 
payment.  The  contract  was  between  the  plaintiff  and  that 
body,  and  the  amount  and  time  of  payment  fixed  by  the  con- 
tract. They  had  no  right  to  disallow  it  (People  v.  Super* 


1872.]  OF  THE  STATR  OF  NEW  YORK.  255 

Monroe  v.  Upton. 

visors  of  Delaware  Co.,  supra))  and  it  was  their  clear  duty 
to  make  the  order  on  which  a  warrant  could  have  been  drawn 
when  the  claim  was  first  presented.  It  had  then  been  due  over 
three  months.  After  the  debt  was  contracted  there  had  been 
two  annual  tax  levies  before  this  action  was  brought,  and  the 
common  council,  though  twice  applied  to,  had  neglected  to  act 
upon  the  claim,  and  to  put  it  in  a  condition  to  be  properly 
paid  from  the  city  treasury.  The  corporation  cannot  thus 
keep  its  creditors  at  bay  and  then  defend  itself,  on  the  ground 
that  its  own  officers  and  agents  have  not  done  what  it  was 
their  duty  to  do. 

If  it  should  be  conceded  that  the  plaintiff  here  might  have 
proceeded  by  mandamus,  to  compel  the  common  council  to 
allow  the  claim  and  make  the  necessary  order  for  its  payment, 
it  would  not  follow  that  this  action  cannot  be  maintained. 
There  is  an  exception  to  the  general  rule  that  a  mandamus 
will  not  lie  where  the  party  has  another  remedy,  in  the  case 
of  corporations  and  ministerial  officers.  They  may  be  com- 
pelled, to  exercise  their  functions  according  to  law  by  manda- 
mus, even  though  the  party  has  another  remedy  against  them 
by  action  for  neglect  of  duty.  (McCuUough  v.  Mayor,  &c., 
of  Brooklyn,  supra,  p.  461.)  We  think  the  action  was  pro- 
perly brought  and  that  the  judgment  should  be  affirmed. 

Judgment  affirmed. 


MORTIMER  J.  MONROE,  Appellant,  v.  WILLARD  UPTON  et  al., 
Respondents. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAT,  1872.) 

In  an  action  upon  a  contract  for  the  recovery  of  damages  for  an  alleged 
breach,  a  trial  was  had  and  a  decision  rendered  in  favor  of  the  plaintiff, 
and  judgment  ordered  thereupon.  Before  the  trial  and  decision  a  peti- 
tion in  bankruptcy  was  filed  by  the  defendant,  and,  after  the  actual  entry 
of  the  judgment,  defendant  obtained  his  discharge  in  the  bankruptcy  pro- 
ceedings. Held,  that  the  defendant  was  discharged  from  the  judgment 
by  the  discharge  in  bankruptcy. 


256  CASES  IN  THE  SUPREME  COURT         [May, 

Monroe  v.  Upton. 

The  defendant,  having  had  no  opportunity  to  plead  his  discharge  in  the 
action,  a  motion  to  set  aside  an  execution  issued  upon  the  jugment,  and 
for  a  perpetual  stay  thereof,  was  his  proper  remedy. 

APPEAL  from  order  of  Special  Term  setting  aside  execu- 
tion and  ordering  a  perpetual  stay  thereof.  The  facts  appear 
in  the  opinion. 

Rowley  &  Parker,  for  the  appellant. 

D.  C.  Hyde,  for  the  respondents. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  action  was  upon  a  con- 
tract for  the  recovery  of  damages  for  an  alleged  breach.  The 
action  was  tried  by  the  court  without  a  jury  at  the  Monroe 
circuit,  October  7th,  1867,  and  there  was  a  finding  and  deci- 
sion in  favor  of  the  plaintiff,  and  judgment  ordered  for 
$1,157.56.  Judgment  was  not  entered  in  the  action  until 
January  20th,  1868.  On  the  26th  of  November,  1867,  the 
defendant  filed  his  petition  in  bankruptcy,  and  was  adjudged 
a  bankrupt  on  the  5th  of  December  following.  On  the  10th 
of  July,  1868,  the  defendant  obtained  his  discharge  in  the 
usual  form.  The  execution  in  question  was  issued  on  the 
judgment  June  1st,  1871. 

As  the  defendant  had  no  opportunity  to  plead  his  discharge 
in  the  action,  his  only  mode  of  relief  is  by  a  motion  of  this 
kind.  (Palmer  v.  Hutchins,  1  Cow.,  42  ;  Baker  v.  Taylor, 
id.,  165  ;  Cornell  v.  Dakin,  38  K  Y.,  253.)  The  only  ques- 
tion, therefore,  is  whether  the  discharge  in  bankruptcy  had 
the  effect  to  discharge  the  defendant  from  the  judgment.  This 
precise  point  has  been  twice  decided  in  this  State  on  mature 
deliberation,  and  it  was  held  in  each  case  that  the  judgment 
was  discharged  when  the  demand  on  which  it  was  founded 
was  provable  in  the  proceedings  in  bankruptcy.  (Dresser 
v.  Brooks,  3  Barb.,  429 ;  Clark  v.  Rowling,  3  K  Y.,  216.) 
In  each  of  these  cases  judgment  had  been  entered  intermedi- 
ate the  filing  of  the  petition  in  bankruptcy  and  the  discharge, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  257 

Worthington  v.  The  New  York  Central  Railroad  Co. 

as  in  the  case  before  us.  There  can  be  no  doubt  that  the 
claim  on  which  the  plaintiffs  judgment  was  founded  was 
provable  in  the  bankruptcy  proceedings.  It  arose  upon  con- 
tract, and  the  action  was  to  recover  damages  unliquidated. 
But  such  claims  are  provable,  as  we  understand  the  bankrupt 
act ;  but  however  this  may  be,  the  claim  here  had  been  liqui- 
dated and  the  amount  ascertained  and  determined  by  the  deci- 
sion of  the  court,  before  the  petition  in  bankruptcy  was  filed. 
The  defendant  might,  doubtless,  have  stayed  the  proceedings 
in  the  action,  and  prevented  the  entry  of  the  judgment  on  the 
decision ;  but  his  neglect  to  do  so  does  not  affect  the  operation 
of  the  discharge  upon  the  judgment.  If  the  judgment  is  dis- 
charged by  the  discharge  in  bankruptcy,  it  cannot  be  enforced 
by  execution. 

The  order  was,  therefore,  right,  and  must  be  affirmed,  with 
ten  dollars  costs  of  the  appeal. 

Order  affirmed. 


GAD  B.  WORTHINGTON,  Respondent,  v.  THE  NEW  YORK  CEN- 
TRAL RAILROAD  COMPANY,  Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAY,  1872.) 

Plaintiff  hired  K.,  a  cartman,  to  transport  goods  from  the  freight-house  of 
the  defendant,  a  railroad  company,  over  whose  road  they  had  been  shipped, 
and  deliver  them  at  his  store  at  a  certain  price  per  ton,  giving  him  no 
authority  to  pay  the  freight  upon  the  goods.  K.  paid  out  of  his  own 
money,  on  delivery  of  the  goods  to  him,  defendant's  bill  for  the  freight 
thereupon,  and  collected  the  amounts  so  paid  from  plaintiff,  without  his 
knowledge  that  K.  had  advanced  the  charges.  These  bills  for  freight 
included  "  back  charges "  paid  by  the  defendant  for  freight  upon  con- 
necting roads,  which  were  falsely  made  out  by  defendant's  clerk  having 
charge  of  the  business,  by  overcharging  the  amounts  which  defendant 
had  so  paid. 

Held,  that  plaintiff  could  not  recover  back  the  over  payments,  on  the  ground 
that  they  were  made  by  mistake,  and  that  plaintiff  had  no  knowledge  or 
means  of  knowledge,  at  the  tune  of  the  payment,  of  their  incorrectness, 
as  the  payments  were  not  made  by  him  nor  with  his  money,  and  K.  was 
not  his  agent  to  make  such  payments. 
LANSING — VOL.  VL  33 


258  CASES  IN  THE  SUPREME  COURT       [May, 

Worthington  n.  The  New  York  Central  Railroad  Co. 

THIS  action  was  brought  to  recover  back  moneys  alleged  to 
have  been  paid  by  the  plaintiff  and  by  his  assignors,  to  the 
agents  of  the  defendants,  for  excessive  charges  on  freight 
transported  over  the  defendant's  railroad,  in  the  years  1865 
and  1866.  The  cause  was  tried  before  a  justice  of  this  court 
and  a  jury  at  the  Genesee  circuit  in  June,  1871. 

It  appeared  upon  such  trial  that  the  plaintiff  was  a  merchant, 
doing  business  in  Batavia,  and  having  goods  shipped  to  him 
over  defendant's  road. 

These  goods  were  taken  from  the  defendant's  freight-house, 
and  delivered  to  the  plaintiff  at  his  store,  by  one  Kinney,  a 
cartman,  with  whom  the  plaintiff  had  a  contract  to  cart  his 
goods  at  a  certain  price  per  ton. 

The  charges  for  freight  were  paid  to  the  defendant  by 
Kinney,  the  cartman,  out  of  his  own  money  at  the  time  he 
took  the  goods  from  the  freight-house,  and  the  bills  were  then 
receipted  and  given  to  him. 

The  plaintiff  paid  the  amount  to  the  cartman  which  he  had 
advanced  for  the  freight.  He  did  not  advance  any  money  to 
the  cartman  to  pay  the  charges  for  freight,  nor  did  he  have 
any  arrangement  with  the  cartman  that  he  should  advance  or 
pay  the  freight  or  charges  on  the  goods,  and  the  plaintiff  should 
pay  him. 

The  plaintiff,  at  the  time  he  paid  these  bills  to  the  cartman, 
did  not  know  that  defendant's  charges  had  been  paid  by  the 
cartmen. 

The  plaintiff  was  familiar  with  defendant's  charges  and 
rates  of  freight,  and  had  access  to  their  freight  register  in 
defendant's  freight  office  at  Batavia,  in  which  were  entered 
the  charges  for  freight,  corresponding  with  the  way-bill. 

The  charges  made  by  connecting  roads,  which  the  defend- 
ant paid  and  charged  and  collected  from  persons  receiving 
freight  at  its  hands,  were  marked  on  the  bills  paid  by  plaintiff, 
as  back  charges,  in  a  separate  item. 

The  business  was  done  in  the  same  manner  with  plaintiff's 
assignors. 

The  amount  of  freight  and  back   charges  appearing  on 


1872.]  OF  THE  STATE  OF  NEW  YORK.  259 

Worthington  «.  The  New  York  Central  Railroad  Co. 

defendant's  freight  register  at  their  freight  office  in  Batavia, 
was  $266.58  less  than  the  amount  actually  paid  by  the  plain- 
tiff and  his  assignors.  No  part  of  such  excess  was  received 
by  the  defendant. 

At  the  close  of  the  evidence  the  defendant  asked  for  a  dis- 
missal of  plaintiff's  complaint  upon  the  following  grounds, 
among  others : 

"  There  is  no  proof  that  the  plaintiff  or  his  assignors  have 
paid  any  money  to  the  defendant  or  to  those  in  its  employment. 

"  The  proof  shows  that  all  moneys  claimed  to  have  been 
paid  as  overcharges  were  voluntarily  paid,  with  full  know- 
ledge, or  with  the  means  of  knowledge,  in  possession  or  reach 
of  those  paying. 

"  The  evidence  fails  to  establish  any  contract  to  transport 
or  deliver  plaintiff's  goods  at  Batavia  at  a  fixed  or  certain 
price. 

"  No  cause  of  action,  under  the  complaint,  proved  against 
the  defendant." 

The  court  refused  to  dismiss  the  complaint,  and  the  defend- 
ant duly  excepted. 

The  counsel  for  the  defendant  also  requested  the  court  to 
instruct  the  jury  "  that  if  the  excess  of  charges  was  paid  by 
the  plaintiff,  he  having  at  the  time  the  means  of  ascertaining 
at  the  freight  office  whether  or  not  the  amount  charged  was 
correct,  it  was  a  voluntary  payment,  and  the  plaintiff  could 
not  recover." 

The  court  refused  so  to  charge,  and  the  defendant  duly 
excepted  to  such  refusal.  The  jury  rendered  a  verdict  for  the 
plaintiff  for  $349.36,  and  from  the  judgment  entered  there- 
upon the  defendant  appealed. 

A.  P.  Laning,  for  the  appellant. 
Wdkenian  &  Taggarty  for  the  respondent. 
Present — MULLEN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 


260  CASES  IN  THE  SUPREME  COURT         [May, 

Worthington  v.  The  New  York  Central  Railroad  Co. 

By  the  Court — JOHNSON,  J.  The  action  is  to  recover 
money  paid  by  the  plaintiff  and  his  assignors  to  the  defendant 
under  a  mistake  of  fact.  When  this  case  was  before  us  on  a 
former  occasion  for  review  of  another  trial,  we  held  that 
according  to  the  facts  found  by  the  referee  the  payments 
appeared  to  have  been  voluntary  and  not  under  any  mistake 
of  fact,  but  with  full  knowledge,  or  the  means  of  knowledge, 
on  the  part  of  the  persons  making  the  payment,  of  all  the 
facts  and  circumstances.  If  that  were  the  only  difficulty  in 
the  case,  I  think  we  should  now  hold  that  that  difficulty  had 
been  overcome  on  the  trial  now  under  review.  It  appeared 
on  the  last  trial  that  the  overcharges  which  had  been  paid 
were  nearly  all  on  back  charges,  and  that  the  plaintiff  and 
others  making  the  payments  had  no  means  of  ascertaining 
whether  they  were  correct  or  not,  but  paid  them  in  good 
faith  according  to  the  bills  presented,  supposing  and 
believing  them  to  be  correct.  These  back  charges  were 
charges  made  by  connecting  roads,  which  the  defendant 
paid,  and  charged  and  collected  from  persons  receiving 
freight  at  its  hands,  which  had  come  over  these  connect- 
ing roads.  The  bills  on  which  these  payments  were  made 
were  falsely  made  up  by  the  defendant's  clerk  and  agent 
having  charge  of  the  business,  by  overcharging  the  amounts 
which  defendant  had  so  paid.  This,  we  are  inclined  to  think, 
would  bring  the  case  fairly  within  the  rule  in  regard  to 
money  paid  by  mistake  on  the  part  of  the  person  paying 
through  the  fraud  of  the  other  party.  But  the  other  diffi- 
culty, that  by  far  the  largest  portion  of  the  money  paid  to  and 
received  by  the  defendant's  agent  was  not  and  has  never 
become  the  money  of  the  plaintiff  or  of  his  assignors,  still 
remains  and  appears  to  be  inseparable.  Of  course  this  action 
cannot  be  maintained  unless  the  plaintiff  can  show  that  the 
defendant,  or  his  agent  authorized  to  receive  money  in  pay- 
ment of  charges  for  freight,  has  received  his  money,  or  that  of 
his  assignors.  It  was  paid  by  Kinney,  the  cartman,  who  had 
no  authority  to  pay  it,  and  who  did  not  profess  or  under- 
take to  pay  it  as  their  agent.  He  was  not  the  agent  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  261 

Worthington  v.  The  New  York  Central  Railroad  Co. 

the  defendant  in  any  sense,  and  was  in  no  respect  in 
their  employment.  He  had  a  contract  with  the  plaintiff 
and  his  assignors  to  transport  their  goods  from  defendant's 
warehouse  and  deliver  them  at  a  certain  price  per  ton.  For 
that  purpose  he  may  be  regarded  as  their  agent  or  employe, 
but  lie  had  no  authority  to  advance  money  and  pay  charges 
on  their  account.  These  payments  he  made  voluntarily  with 
his  own  money,  and  took  the  bills  receipted  with  the  goods ; 
and  the  sums  paid  was  reimbursed  to  him  without  any  know- 
ledge, on  the  part  of  the  owners  of  the  goods,  that  he  had 
paid  the  bills  to  the  defendant.  How,  then,  does  the  plaintiff 
get  any  title  to  this  money  overpaid  in  the  defendant's  hands  ? 
Certainly,  when  the  defendant  received  it  and  gave  a  receipt 
iu  full,  neither  the  plaintiff  nor  his  assignors  had  any  right 
or  title  to  it  whatever.  It  was  advanced  to  the  defendant  by 
a  volunteer,  who  did  not  assume  to  act  as  their  agent  in  the 
transaction  of  paying  the  money,  but  who  advanced  his  own 
funds,  taking  the  risk  of  their  paying  him.  The  cartman, 
upon  the  facts  which  appear  in  the  case,  could  not  have  com- 
pelled them  to  pay  him  these  advances  which  they  had  never 
requested  him  to  make  on  their  account,  and  which  they  had 
never  assented  to  or  sanctioned  in  any  way,  except,  perhaps, 
by  retaining  the  goods.  But,  whether  this  is  so  or  not,  makes 
little  or  no  difference  in  this  case.  The  case  is  simply  and 
sharply  this :  Kinney  paid  their  debts  voluntarily,  without 
any  request  or'  authority ;  and  they,  without  knowing  this, 
pay  him  what  he  has  advanced.  The  question  then  is,  does 
this  give  them  any  title  to  the  money  paid  by  Kinney  to  the 
defendant  ?  Clearly,  not.  The  mere  naked  statement  of  the 
proposition  is  sufficient  to  refute  the  plaintiff's  claim.  It  is, 
in  this  action,  a  question  of  title,  and  not  of  equitable  subro- 
gation to  any  claims  Kinney  may  be  supposed  to  have. 
Probably  Kinney  could  not  have  maintained  any  action  of 
this  kind  against  the  defendant,  as  it  had  no  demands  against 
him,  and  he  was  under  no  obligation  to  pay  anything.  If 
the  plaintiff,  by  reason  of  his  over-payments  and  assignments, 
has  any  title  to  any  money,  it  must  be  to  that  in  Kinney 'g 


262  CASES  IN  THE  SUPREME  COURT  [May, 

Stack  v.  Bangs. 

hands,  instead  of  that  in  the  hands  of  the  defendant.    It  does 
not  vary  the  case  on  this  question  that  Kinney  was  told  by 
defendants'  agents  to  bring  back  the  goods  in  case  the  owners 
refused  to  pay  what  he  had  advanced,  as  none  were  ever 
returned.     Over-charges  of  this  kind  paid  by  the  plaintiff  tc 
the  defendant,  or  to  its  agent  duly  authorized  to  receive  mone 
for  such  charges,  or  by  his  assignees,  stand  upon  a  differe? 
footing,  and  we  think  may  be  recovered  upon  the  facts  whi 
appear  in  the  case.     But  little,  if  anything,  appears  to  have 
been  paid  in  that  way. 

The  judgment  must,  therefore,  be  reversed  and  a  new  trial 
ordered,  with  costs  to  abide  the  event. 

New  trial  granted. 


ROBEET  STACK,  Appellant,  v.  MYKON  BANGS,  Respondent. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAY,  1872.) 

In  order  to  render  a  canal  contractor  liable  for  damages  resulting  from 
defects  in  a  canal  bridge,  it  is  not  necessary  to  establish  either  that  tho 
bridge  was  so  defective  as  to  be  apparently  so  to  everybody,  or  that  notice 
of  its  defective  and  unsafe  condition  had  been  brought  to  the  contractoi 
or  his  agents.  It  is  sufficient  if  it  appears  that  the  defects  were  such  as 
the  contractor  might,  by  reasonable  examination  and  tests,  have  discov 
ered,  and  the  question  of  his  negligence  in  not  making  such  discovery  is 
one  for  the  jury. 

MOTION  for  new  trial  upon  exceptions  ordered  to  be  heard 
in  the  first  instance  at  the  General  Term.  The  facts  appear 
sufficiently  in  the  opinion. 

Hiscock,  Gifford  <&  Doheny,  for  the  plaintiff. 

Roger  &  Jenney,  for  the  defendant. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  plaintiff  was  improperly 
nonsuited.  His  counsel  asked  to  have  the  case  submitted  to 
the  jury  on  the  question  of  the  defendant's  negligence,  which 


1872.]  OF  THE  STATE  OF  NEW  YORK.  263 

Stack  v.  Bangs. 

was  denied,  and  an  exception  duly  taken.  The  action  was 
brought  to  recover  damages  sustained  by  the  plaintiff,  occa- 
sioned by  the  wrongful  and  negligent  conduct  of  the  defend- 
ant in  not  keeping  the  bridge  across  the  canal  at  Geddes 
street  in  Syracuse  in  repair  and  in  a  safe  condition. 

The  defendant  was  a  canal  contractor,  and  the  bridge  in 
question  was  embraced  in  his  contract.  The  plaintiff  was 
crossing  the  bridge  with  a  team  and  loaded  wagon,  when  the 
bridge  suddenly  gave  way,  precipitating  the  plaintiff,  with  his 
wagon  and  horses,  into  the  canal,  by  means  of  which  the  plaintiff 
was  much  injured  and  his  property  more  or  less  damaged.  The 
load  upon  the  wagon  does  not  appear  to  have  been  excessive 
in  respect  to  weight,  and  it  was  drawn  with  ordinary  speed 
only  for  such  a  place.  The  fact  that  the  bridge  broke  down 
under  such  circumstances  is  quite  conclusive  that  it  was  at 
the  time  in  an  unsafe  condition.  The  evidence  in  the  case 
tends  to  show  that  the  bridge  gave  way  on  account  of  a  cer- 
tain brace  under  it  being  out  of  place,  or  on  account  of  the 
timbers  being  rotten,  or  from  both  causes  combined.  Some 
of  the  timbers  of  which  the  bridge  was  constructed  were 
shown  to  have  been  quite  rotten  and  unfit  for  such  a  place. 
The  court  ruled  that  in  order  to  render  the  defendant  liable 
the  plaintiff  must  show  either  that  the  bridge  was  so  defective 
as  to  be  apparent  to  everybody,  in  which  case  the  defendant 
would  be  bound  to  take  notice  of  it,  or  that  notice  of  its 
defective  and  unsafe  condition  had  been  brought  to  the 
defendant  or  his  agents.  This  is  not  the  rule.  It  was  clearly 
a  question  upon,  all  the  evidence,  whether  the  defendant  had 
not  been  negligent  in  not  ascertaining  the  real  condition  of 
the  structure  if  he  was  ignorant  of  it.  That  he  would  be 
liable  for  his  negligence  in  a  case  like  this,  is  established  by 
the  decision  in  Robinson  v.  Chamberlain  (34  N.  Y.,  389)  and 
in  Fulton  Fire  Ins.  Co.  v.  Baldwin  (37  id.,  648).  Canal 
bridges  fall  within  this  rule,  as  was  expressly  held  in  Conroy, 
Adrn'r,  v.  Gale,  decided  in  the  third  department  at  the  June 
term.  1871.* 

*  Reported  5  Lansing,  344. 


264  CASES  IN  THE  SUPREME  COURT          [May, 

Decker  «.  Leonard. 

In  that  case,  as  appears  by  the  opinion  which  has  been  fur- 
nished us,  it  was  distinctly  held  that  notice  to  the  contractor 
of  the  dangerous  condition  of  the  bridge  was  not  necessary, 
but  that  it  might  be  a  question  for  the  jury  whether  the 
defects  were  so  far  concealed  as  to  relieve  the  contractor  from 
responsibility  on  the  score  of  negligence.  This  decision  has, 
as  we  understand,  been  affirmed  by  the  Court  of  Appeals. 
The  defendant  was  under  an  obligation  and  a  duty  to  keep 
this  bridge  in  repair,  and  it  will  hardly  do  for  him  to  say 
merely  that  he  had  not  been  informed  in  regard  to  its  condi- 
tion. He  should  have  known,  if  he  could  have  found  out  by 
reasonable  examination  and  tests.  He  could  not  sit  still  and 
suifer  the  braces  to  fall  out  or  the  timbers  go  to  decay  without 
any  care  or  examination,  and  shield  himself  from  liability  on 
the  ground  of  such  ignorance.  (McCarthy  v.  City  of  Syrar 
cuse,  46  N.  T.,  194.)  The  plaintiff  should  have  been  allowed 
to  go  to  the  jury  on  the  question  of  the  defendant's  negli- 
gence. A  new  trial  must,  therefore,  be  ordered,  with  costs 
to  abide  the  event. 

New  trial  granted. 


LAVINA  A.  DECKER,  Respondent,  v.  JOHN  E.  LEONARD, 
Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAY,  1872.) 

Pursuant  to  a  parol  agreement  between  plaintiff  and  E.,  and  in  considera- 
tion of  a  certain  sum  advanced  by  E.  to  her,  a  deed  was  executed  by 
plaintiff  of  certain  premises  owned  and  possessed  by  her,  reciting  the 
receipt  of  a  valuable  consideration,  in  which  the  wife  of  E.  was  named 
as  grantee.  At  the  same  time  with  the  execution  of  the  deed,  E.  exe- 
cuted an  agreement  in  writing  and  under  seal,  by  which  he  for  value 
received  agreed  that  plaintiff  should  have  the  sole  and  undivided  use  of 
the  premises  conveyed  by  the  deed  during  her  natural  life ;  and,  further, 
that  she  might  sell  the  same  at  any  time  by  paying  to  E.  a  sum  named, 
without  interest.  This  agreement  was  delivered  to  plaintiff,  who  simul- 
taneously delivered  to  E.  the  deed.  The  wife  of  E.  was  not  present  at 
the  transaction,  and  it  did  not  appear  that  she  had  at  the  time  any  know- 


N 

1872.]  OF  THE  STATE  OF  NEW  YORK.  265 

Decker  v.  Leonard. 

ledge  of  it.  Plaintiff  continued  in  possession  of  the  property  until  it  was 
conveyed  with  warranty  by  E.  and  his  wife  to  defendant,  who  had  actual 
notice  before  his  purchase  of  the  agreement  between  E.  and  plaintiff. 
Defendant  then  took  possession  of  the  property. 

Held,  that  the  deed  and  agreement  were  to  be  construed  together  as  one 
instrument,  and  were  in  legal  effect  a  mortgage ;  that  by  the  conveyance 
to  him  defendant  became  only  an  assignee  thereof,  and  that  plaintiff  was 
entitled  to  recover  the  possession  of  the  premises. 

ACTION  to  recover  possession  of  real  estate.  The  facts  are 
as  follows :  On  the  6th  of  October,  1854,  the  plaintiff'  was 
seized  in  fee  of  the  premises  in  question,  and  on  that  day 
entered  into  an  agreement  by  parol  with  Eddington  B. 
Decker,  in  consideration  of  a  certain  sum  of  money  advanced 
by  said  Eddington,  and  of  certain  rights  of  possession  and 
redemption  of  said  premises  to  be  secured  to  her,  to  convey 
to  said  Eddington  or  to  his  appointee  the  said  premises  by 
deed  purporting  on  its  face  to  convey  an  absolute  title.  In 
pursuance  of  such  parol  agreement  or  understanding  a  deed 
was  prepared  to  be  executed  by  said  plaintiff,  in  which  Marga- 
ret Decker,  the  wife  of  said  Eddington,  was  named  as  grantee 
with  a  consideration  of  $427  named  therein  as  received. 
This  deed  purported  to  convey  the  entire  fee  of  the  premises 
and  was  signed  and  acknowledged  by  the  plaintiff. 

At  the  same  time  the  said  Eddington  had  prepared  a  paper 
for  the  plaintiff,  in  order  to  carry  out  the  agreement,  in  the 
words  and  figures  following: 

"  For  value  received,  I,  E.  B.  Decker,  of  the  city  and  county 
of  New  York,  hereby  agree  that  Lavina  Decker,  of  Auburn, 
county  of  Cayuga  and  State  of  New  York,  shall  have  the 
sole  and  undivided  use  of  the  house  and  lot  known  as  No. 
3  of  the  Academy  lease  lots,  during  her  natural  life.  I  fur- 
ther agree  that  she  shall  at  any  time  sell  the  above  named 
property  by  paying  to  me  the  sum  of  four  hundred  dollars, 
without  interest  from  date. 

«  AUBURN,  Oct.  6,  1854. 
«  [L.  s.]  E.  B.  DECKER." 

LANSING— VOL.  VL         34 


266  CASES  IX  THE  SUPREME  COURT          [May, 


Decker  v.  Leonard. 


This  paper,  signed  and  sealed  by  Eddington,  was  delivered 
to  the  plaintiff,  and  simultaneously  the  plaintiff  delivered  to 
him  the  deed  aforesaid.  Eddington  was  a  stepson  of  the 
plaintiff,  and  the  evidence  tended  to  show  that  the  money 
advanced  by  him  was  to  pay  off  and  satisfy  an  outstanding 
mortgage  on  the  premises. 

Margaret  Decker,  the  grantee  in  the  deed,  was  not  present 
at  any  part  of  the  transaction,  and  there  is  no  evidence  to 
show  that  she  had  given  any  previous  authority  to  her  hus- 
band, or  had  any  interest  in  the  money  advanced,  or  had  any 
knowledge  whatever  of  what  was  done  until  some  time  after 
the  whole  was  completed.  The  plaintiff's  deed  to  the  grantee 
was  duly  recorded,  but  the  agreement  was  neither  acknow- 
ledged or  recorded.  The  plaintiff  continued  in  possession  of 
the  premises,  after  this  transaction  the  same  as  before,  up  to 
March  23d,  1870,  when  the  said  grantee,  with  her  husband 
Eddington,  conveyed  the  same  by  deed  with  covenant  of  war- 
ranty to  the  defendant.  The  defendant  under  this  deed  went 
into  possession  on  the  10th  of  April  thereafter,  to  the  exclu- 
sion of  the  plaintiff,  and  continued  the  same  up  to  the  com- 
mencement of  the  action. 

The  defendant,  before  his  purchase,  had  actual  notice  of 
the  plaintiff's  claim. 

The  action  was  tried  by  the  court  without  a  jury.  Judg- 
ment was  ordered  in  favor  of  the  plaintiff  for  the  recovery  of 
the  possession,  and  $135  damage  for  use  and  occupation,  and 
withholding  possession. 

The  defendant  excepted,  and  appeals  to  the  General  Term. 

J.  T.  Pingree^  for  the  appellant. 
W.  E.  Hughitt)  for  the  respondent. 
Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  Upon  the  facts  established  in 
this  case  we  think  the  judgment  is  right. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  267 


Decker  «.  Leonard. 


The  defendant  is  not  a  bonafide  purchaser  without  notice, 
and  is  in  no  better  situation  than  his  grantor,  Margaret 
Decker  would  have  been,  had  she  been  in  possession  and  the 
action  been  brought  against  her.  It  is  insisted,  on  behalf  of 
the  defendant,  that  Margaret  Decker,  by  means  of  the  plain- 
tiff's conveyance  to  her,  acquired  a  perfect  and  absolute  title 
to  the  premises,  which  was  in  no  respect  limited  or  affected 
by  the  instrument  executed  by  her  husband,  and  delivered 
cotemporaneously  with  the  delivery  of  the  grant.  But  this 
will  scarcely  do.  The  instrument  and  the  right  therein  spe- 
cified are  part  of  the  consideration  of  the  grant,  and  a  part 
of  the  bargain  in  which  the  grant  is  founded. 

The  grant  and  the  instrument  were  executed  and  delivered 
at  the  same  time,  in  fulfillment  and  performance  of  a  previous 
parol  arrangement,  and  are  to  be  read  and  construed  together, 
as  though  both  were  a  single  instrument.  The  bargain  was 
the  bargain  of  the  grantee's  husband  and  the  plaintiff. 

They  were  the  sole  parties  in  interest  in  the  subject-matter, 
so  far  as  appears.  The  deed  to  the  wife  was  a  mere  gratuity 
from  the  husband.  It  was  the  fruit  of  his  contract,  which, 
if  she  accepted,  she  must  accept  with  all  its  qualifications  and 
burdens.  She  must  take  the  burden  as  well  as  the  benefit, 
and  cannot  be  allowed  to  hold  the  one  and  reject  the  other. 
She  might  have  refused  to  accept  the  deed,  as  she  was  in  no 
way  interested  in  the  subject-matter  out  of  which  it  sprang, 
and  was  under  no  obligation  to  have  anything  to  do  with  the 
transaction.  But  having  accepted  it,  she  must  hold  it,  as  it 
is,  affected  by  the  whole  transaction  in  which  it  had  its  origin 
and  consummation,  and  for  what  it  is,  in  fact  and  in  law ; 
and  cannot  repudiate  or  change  anything  connected  with  it 
without  restoring  what  she  has  received.  If  she  retains  what 
she  gets  by  the  instrument  the  law  will  oblige  her  to  sanction 
and  be  bound  by  the  whole  transaction,  and  will  make  it 
hers,  the  same  as  though  she  authorized  and  directed  it  ori- 
ginally. 

The  law  will  charge  the  instrumentalities  to  her  account, 
and  impute  to  her  all  the  concurrent  acts  which  affect  the 


268  CASES  IN  THE  SUPREME  COURT          [May 


Decker  «.  Leonard. 


transaction,  the  same  as  though  she  had  been  the  party  ori- 
ginally. (Paley  on  Agency,  Dunlap's  ed.,  171,  n,  o  ;  Ben- 
nett v.  Judson,  21  N.  Y.,  238 ;  Story  on  Agency,  §  256.) 
The  instrument  given  to  the  plaintiff,  therefore,  when  the 
deed  was  delivered,  whatever  may  be  its  legal  effect,  is  her 
instrument  so  far  as  it  affects  her  title  under  the  conveyance. 
This  instrument,  in  express  terms,  provides  that  the  plaintiff 
may  at  any  time  sell  the  property  by  paying  to  the  husband 
and  agent  of  the  grantee  the  sum  of  $400,  without  interest, 
and  that  the  plaintiff  shall  have  the  sole  and  undivided  use 
of  the  house  and  lot  during  her  natural  life.  One  part  of  the 
instrument  is  clearly  in  the  nature  of  a  defeasance,  and  ren- 
ders the  deed  but  a  mortgage  within  the  provisions  of  our 
statute.  (1  R.  S.,  756,  §  3.)  It  is,  in  point  of  law,  merely  a 
mortgage  by  way  of  securing  the  money  advanced,  reserving 
to  the  mortgagor  the  right  of  possession  and  occupancy  during 
her  life.  The  instrument  is  in  writing,  and  is  under  seal, 
and  shows  plainly  what  was  intended  by  the  parties  to  the 
transaction,  and  it  comes  within  the  terms  of  the  statute. 
No  seal  was  necessary ;  but  it  works  no  harm.  Reading  the 
two  instruments  together,  the  deed  becomes  a  mere  mort- 
gage, reserving  to  the  mortgagor  the  right  as  against  the 
mortgagee  of  possession  and  occupancy  during  her  natural 
life. 

The  defendant,  as  grantee  of  the  plaintiff's  grantee,  is  only 
an  assignee  of  this  limited  mortgage,  and  was  not  entitled  to 
possession.  Had  it  been  an  ordinary  mortgage,  and  the 
mortgage  debt  due,  the  defendant,  being  in  possession,  might 
perhaps  have  retained  it  until  the  debt  should  be  paid. 

But  here,  by  the  very  terms  of  the  mortgage,  the  plaintiff's 
right  of  possession  is  secured  to  her  for  life,  and,  also,  the 
right  of  paying  off  the  debt  at  any  time  she  might  choose, 
without  interest.  The  judgment  is  therefore  right,  and  should 
be  affirmed. 

Judgment  affirmed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  269 

Loomis  v.  Board  of  Supervisors  of  Oneida  County. 


E.HODA  M.  LOOMIS  v.  THE  BOARD  OF   SUPERVISORS   OF 
ONEEDA  COUNTY. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MAT,  1872.) 

In  an  action,  brought  pursuant  to  chapter  428  of  Laws  of  1855,  to  recover 
the  value  of  property  owned  by  the  plaintiffs  as  tenants  in  common, 
which  had  been  destroyed  by  a  mob,  it  appearing  that  certain  of  the 
plaintiffs  had  been  notified  several  days  before  the  assembling  of  the  mob 
and  occurrence  of  the  injury  of  threats  and  attempts  to  be  made,  to  destroy 
the  property  by  a  mob,  and  that  no  notice  had  been  given  by  the  plain- 
tiffs so  notified  to  the  sheriff  of  the  county,  and  that  others  of  the  plaintiffs 
had  received  no  actual  notice  and  had  no  personal  knowledge  of  the 
threatened  destruction  of  the  property, — Held,  that  a  charge  to  the  jury 
to  the  effect  that  such  of  the  plaintiffs  as  had  been  thus  notified  were  not 
entitled  to  recover,  for  the  reason  that  they  had  failed  to  notify  the  sheriff 
of  the  county  in  regard  to  the  threats,  but  that  such  of  them  as  had  not 
been  notified  and  had  no  personal  knowledge  of  the  threats  were  entitled 
to  recover ;  and  that  notice  to  their  co-plaintiffs  and  co-tenants  was  not, 
in  law,  notice  to  them,  was  correct. 

MOTION  for  a  new  trial  upon  exceptions  ordered  to  be  heard 
in  the  first  instance  at  General  Terra.  The  facts  are  stated 
in  the  opinion. 

John  D.  Kernan,  for  the  plaintiffs. 
C.  D.  Adams,  for  the  defendants. 
Present — JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  action  was  brought  under 
the  statute  of  1855  (Sess.  Laws  of  1855,  chap.  428)  to  recover 
the  value  of  property  held  and  owned  by  the  plaintiffs  as  ten- 
ants in  common,  which  had  been  destroyed  by  a  mob.  The 
only  ground  on  which  the  defendants'  counsel  asks  for  a  new 
trial  is  upon  a  quention  of  law  arising  on  an  exception  to  the 
charge  to  the  jury.  The  plaintiffs  held  and  owned  the  premi- 
ses destroyed  as  tenants  in  common,  and  it  was  shown  upon 
the  trial  that  a  certain  number  of  them,  several  days  before 
the  assembling  of  the  mob  and  the  occurrence  of  the  injury, 


270  CASES  IN  THE  SUPREME  COURT          [May, 

Loomis  v.  Board  of  Supervisors  of  Oneida  County. 

had  been  notified  and  apprised  of  threats,  and  attempts  to  be 
made  to  destroy  the  property  by  a  mob,  and  that  no  notice 
thereof  had  been  given  by  the  plaintiffs  so  notified  to  the 
sheriff  of  the  county.  The  other  plaintiffs  had  received  no 
actual  notice,  and  had  no  personal  knowledge  of  the  threatened 
or  intended  destruction  of  the  property.  The  judge  charged 
the  jury  that  such  of  the  plaintiffs  as  had  been  thus  notified 
were  not  entitled  to  recover,  for  the  reason  that  they  had  failed 
to  notify  the  sheriff  of  the  county  in  regard  to  the  threats, 
but  that  such  of  them  as  had  not  been  notified  and  had  na 
personal  knowledge  of  the  threats  were  entitled  to  recover ; 
and  that  notice  to  their  co-plaintiffs  and  co-tenants  was  not, 
in  law,  a  notice  to  them.  To  these  latter  portions  of  the 
charge  the  defendants'  counsel  duly  excepted.  "We  think  the 
charge  in  this  respect  was  clearly  right.  The  statute  (§  1) 
declares  that  in  the  case  of  any  building  or  other  real  or  per- 
sonal property  being  destroyed  or  injured  in  consequence  of 
any  mob  or  riot,  "  the  city  or  county  in.  which  such  property 
was  situated  shall  be  liable  to  an  action,  by  or  in  behalf  of  the 
party  whose  property  was  thus  destroyed  or  injured,  for  the 
damages  sustained  by  reason  thereof."  The  third  section 
provides  that  no  person  shall  be  entitled  to  recover  in  such 
action  unless  he  shall  have  used  all  reasonable  diligence  to 
prevent  such  damage,  "  and  shall  have  notified  the  mayor  of 
such  city,  or  the  sheriff  of  such  county,  immediately  after 
being  apprised  of  any  threat  or  attempt  to  destroy  or  injure 
his  or  their  property."  The  point  insisted  upon  is,  that 
notice  to  one  tenant  in  common  is  notice  to  all,  and  that  the 
neglect  of  such  tenant  to  give  the  requisite  notice  is  the  neg- 
lect of  all  the  other  co-tenants,  and  bars  a  recovery  by  them. 
But  this  is  not  the  meaning  and  intent  of  the  statute,  nor  the 
import  of  its  language.  By  the  plain  terms  and  meaning  of 
the  act,  in  order  to  prevent  a  recovery,  the  neglect  of  the 
duty  imposed  must  be  by  the  person  to  whom  the  right  of 
action  is  given,  and  not  by  some  other  person,  who  could  not 
recover  for  his  interest.  Tenants  in  common  of  real  property 
do  not  represent  each  other's  interests.  There  is  no  privity 


1871.]  OF  THE  STATE  OF  NEW  YORK.  271 


Sortore  v.  Scott. 


of  estate  between  them.  They  are  separately  seized,  and  are 
deemed  to  have  several  and  distinct  freeholds,  and  each  is  con- 
sidered as  solely  or  severally  seized  of  his  share.  (4  Kent 
Com.,  367,  368.)  There  is  no  agency  between  them  for  each 
other,  except  by  appointment  or  agreement,  which  does  not 
appear  here.  Notice  to  some  of  the  tenants  in  common  was, 
therefore,  in  no  legal  sense,  notice  to  the  others,  and  such 
others  could  not  notify  the  sheriff,  having  nothing  to  commu- 
nicate. They  consequently  do  not  come  within  the  prohibi- 
tion of  the  third  section  of  the  act,  and  were  entitled  to 
recover. 

The  charge  was  right,  and  a  new  trial  must  be  denied  and 
judgment  ordered  for  these  plaintiffs  on  the  verdict. 

The  presiding  justice,  having  tried  the  cause  at  the  circuit, 
does  not  sit. 

New  trial  denied. 


CYNTHIA  SORTORE,  Respondent,  v.  RUFUS  SCOTT,  Administrator 
of  HENRY  SORTORE,  deceased,  Appellant,  impleaded,  etc. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MARCH,  1871.) 

The  eestuis  que  trust  are  vested  with  an  absolute  title  to  funds  set  apart  from 
the  assets  of  an  estate  as  trust  funds,  and  may  maintain  an  action  for  their 
mismanagement  and  loss. 

It  seems  a  plaintiff  may  make  a  case  entitling  him  to  part  of  the  relief 
which  he  demands,  and  be  refused  other  relief  for  failure  to  join  with 
himself  other  necessary  parties. 

It  seems  that  the  rule  which  denies  a  right  of  action  against  the  represen- 
tatives of  a  deceased  joint  debtor  and  the  survivor,  until  the  remedy  is 
exhausted  against  the  latter,  unless  he  is  insolvent,  does  not  apply  to  the 
case  of  breach  of  trust  by  trustees. 

But  that  the  representatives  of  a  deceased  trustee  are  properly  joined  with 
the  surviving  trustee  in  an  action  for  breach  of  trust  happening  during 
the  deceased  trustee's  life. 

But  a  plaintiff  cannot  unite  a  right  of  action  for  breach  of  trust,  against 
a  surviving  trustee,  and  the  representative  of  his  deceased  co-trustee, 


272  CASES  IN  THE  SUPREME  COURT       [March, 

Sortore  v .  Scott 

with  a  claim  for  interest,  of  trust  funds,  recoverable,  against  the  surviving 
trustee  as  surviving  executor  of  the  estate  from  which  the  trust  funds 
have  been  set  apart  ,in  an  action  at  law. 

Nor  can  the  cestui  que  trust,  entitled  to  interest  of  the  trust  fund  during 
life,  have  an  action  to  compel  the  trustees  to  give  security  for  moneys 
lost  by  their  breach  of  trust,  and  an  accounting,  or  to  recover  the 
moneys  lost,  without  joining  those  owning  the  remainder. 

THIS  was  an  appeal  by  the  defendant  Scott,  as  an  executor 
of  Henry  Sortore,  deceased,  from  an  order  of  Special  Term, 
overruling  his  demurrer  to  the  plaintiff's  complaint. 

On  the  30th  January,  1864,  William  Sortore  died  in 
the  county  of  Allegany,  leaving  a  will,  in  and  by  which 
he  bequeathed  to  his  executors  the  sum  of  $2,000  in  trust, 
to  receive  the  interest  thereof  and  pay  the  same  to  his  wife 
(the  plaintiff  in  this  suit)  during  her  natural  life,  and  after 
her  death  the  principal  sum  to  be  equally  divided  between 
his  children,  eight  in  number. 

Jesse  Sortore  and  Henry  Sortore  were  appointed  executors 
of  said  last  will. 

On  the  Tth  March,  1864,  said  will  was  duly  proved  before 
the  surrogate  of  Allegany  county,  and  the  executors  named 
therein  received  letters  testamentary  and  took  upon  them- 
selves the  duties  of  such  office. 

Henry  Sortore,  one  of  the  said  executors  named  in  said 
will,  departed  this  life  on  the  23d  March,  1869,  and  the 
defendants,  Jesse  Sortore  and  Rufus  Scott,were  duly  appointed 
administrators  of  his  estate. 

The  plaintiff,  being  the  widow  of  said  testator  and  one  of 
the  cestuis  que  trust  under  the  said  will,  brings  this  action  to 
compel  the  defendants  to  account  to  her  for  the  interest  due 
to  her,  from  said  $2,000,  and  compel  the  defendants  to  give 
security  for  the  faithful  performance  of  their  trust  in  the 
future,  or,  failing  in  this,  that  they  be  removed  and  another 
trustee  appointed. 

The  complaint,  after  setting  out  the  aforesaid  facts,  charges 
that  the  testator  left  a  large  amount  of  real  and  personal 
estate,  sufficient  to  pay  all  his  debts  and  funeral  expenses, 


1871.]  OF  THE  STATE  OF  NEW  YORK.  273 

Sortore  ».  Scott. 

and  all  the  legacies  given  by  said  will,  including  said  $2,000 

That  the  said  executors  received  from  the  estate  of  the 
testator  said  sum  of  $2,000.  That  being  unmindful  of  the 
trust  reposed  in  them,  and  to  accommodate  a  friend,  one 
Yan  Canter,  entrusted  $1,000  of  said  $2,000  so  received  by 
them,  in  his  hands,  without  adequate  security ;  and  although 
there  is  a  large  amount  of  interest  due,  to  wit,  the  interest 
on  $2,000  for  more  than  a  year,  yet  defendants  refuse  to  pay 
the  same  or  to  account  to  plaintiff  therefor,  on  the  pretence 
that  said  Yan  Canter  has  failed  and  is  unable  to  pay  any  part 
of  said  $1,000,  and  that  plaintiff  is  bound  to  bear  the  loss. 

The  plaintiff,  demands  the  relief  above  stated. 

To  this  complaint  the  defendant,  Scott,  demurred,  and 
specified  the  following  grounds : 

1st.  The  complaint  does  not  state  facts  sufficient  to  consti- 
tute a  cause  of  action. 

2d.  It  does  not  state  facts  sufficient  to  constitute  a  cause  of 
action  against  said  Scott,  as  administrator,  nor  against  him  and 
Sortore,  administrators  of  Henry  Sortore,  deceased,  as  one  of 
the  executors  of  William  Sortore,  the  testator. 

3d.  There  is  a  defect  of  parties.  The  children  of  the  tes- 
tator should  be  joined  as  plaintiffs. 

4th.  There  is  a  misjoinder  of  causes  of  action,  to  wit,  a 
demand  due  from  Jesse  Sortore  as  surviving  executor,  with  a 
demand  due  from  Jesse  Sortore  and  Scott,  administrators  of 
the  estate  of  Henry  Sortore,  deceased,  another  of  the  executors 
of  the  last  will  of  said  William  Sortore,  deceased. 

The  Special  Term  overruled  the  demurrer  with  costs,  and 
gave  the  defendant  leave  to  answer  in  twenty  days  on  pay- 
ment of  costs. 

From  this  order  the  defendant  appeals. 

Jones  &  Spargur,  for  the  appellant. 
Hamilton  Ward,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 
LANSING  — VOL.  YI.         35 


274  CASES  IN  THE  SUPREME  COURT      [March, 

Sortore  v.  Scott. 

MULLIN,  P.  J.  The  cases  in  which  a  cestui  que  trust  can 
maintain  an  action  at  law  against  a  trustee  are  very  few  in 
number,  and  this  is  not  of  that  number.  A  court  of  equity 
is  the  proper  tribunal  to  adjust  the  rights  and  liabilities  of 
persons  who  occupy  that  relation.  (Hill  on  Trustees,  42; 
id.,  518  and  notes.) 

This  action  must  be  held  to  be  an  equitable  one,  therefore, 
and  we  are  to  look  to  the  adjudication  of  the  courts  of  equity 
to  guide  us  in  determining  the  questions  arising  on  the 
demurrer. 

The  complaint  alleges  a  breach  of  trust  by  the  trustees  in 
the  lifetime  of  Henry  Sortore,  the  deceased  executor ;  and  as 
that  breach  consisted  in  the  neglect  of  both  to  obtain  proper 
security  on  loaning  the  trust  moneys,  both  trustees  are  pre- 
sumptively liable  for  the  breach.  (Hill  on  Trustees,  309, 310 
and  notes.) 

Such  an  act  by  trustees  is  a  breach  of  trust.     (Id.) 

The  complaint  charges  that  the  trustees  set  apart  from  the 
assets  of  the  estate  of  the  testator  the  sum  of  $2,000,  as  the 
fund  required  by  the  will  to  be  invested,  and  the  interest 
paid  to  the  plaintiff. 

This  allegation  is  admitted  by  the  demurrer. 

In  the  case  of  Lietch  v.  Wells  (48  Barb.,  637),  the  right  of 
csstuis  que  trust  to  maintain  an  action  for  breach  of  trust  is 
established. 

In  that  case  the  testator  died,  having  made  a  will,  by  which 
he  gave  to  his  executors  in  trust  $25,000  to  be  invested,  and 
the  interest  to  be  paid  to  his  daughter  during  her  life ;  and, 
from  her  death,  to  he  held  in  trust  for  her  children.  The 
executors  became  insolvent  and  a  receiver  was  appointed. 
The  executors  transferred  to  the  receiver  all  the  assets  of  the 
estate  in  their  hands  except  $25,000  in  the  stock  of  a  certain 
bank,  which  they  retained  as  trustees  for  the  daughter  of  the 
testator  and  her  children,  which  had  been  set  apart  for  the 
purposes  of  said  trust. 

Those  shares  of  the  stock  came  to  the  surviving  executor, 
and  he  fraudulently  disposed  of  them  for  his  own  purposes. 


1871.]          'OF  THE  STATE  OF  NEW  YORK  275 

Sortore  c.  Scott. 

The  mother  and  her  children,  the  cestuis  que  trust,  undei 
said  will,  commenced  an  action  in  this  court  to  recover  the 
legacies  given  to  them,  and  claiming  the  stock  set  apart  tor 
them  as  above  stated. 

The  mother  died,  and  the  suit  was  continued  in  the  namo 
of  the  children. 

It  was  held  that,  by  setting  apart  the  stocks,  the  cestuis 
que  trust  became  the  owners  of,  and  vested  with,  the  absolute 
title  to  said  stocks,  and  that  the  transfer  by  the  trustee  was 
void. 

As  both  the  plaintiff  and  her  children  are  interested  in  the 
funds  set  apart  pursuant  to  the  will,  both  are  interested  in  its 
protection.  And  in  an  action  brought  to  remove  trustees,  or 
to  compel  them  to  give  security,  both  should  unite;  otherwise 
both  the  plaintiff  and  the  children  might  bring  separate 
actions  to  obtain  the  same  relief.  (Muneck  v.  CDchiett,  8 
Simons,  2L9-231.) 

In  the  recovery  of  the  interest  remaining  unpaid  the  plain 
tiff  alone  is  interested,  and  she  may  maintain  an  action  in  her 
own  name  therefor. 

The  complaint  contains  no  material  allegations  not  proper 
to  be  made  in  a  complaint  to  recover  the  interest,  unless  it 
may  be  such  as  relate  to  the  death  of  one  of  the  executors 
and  the  appointment  of  administrators  for  his  estate;  and 
these  are  necessary  if  the  surviving  executors  and  the  repre- 
sentatives of  the  deceased  one  may  be  joined  as  defendants. 

There  is  not  an  improper  joinder  of  causes  of  action  in  this 
complaint ;  but  more  extensive  relief  is  demanded  than  the 
court  will  grant  unless  other  parties  are  brought  in. 

The  relief  given  has  reference  to  the  parties  that  are  before 
the  court.  One  plaintiff  may  make  a  case  entitling  him  to 
part  of  the  relief  demanded,  but  will  be  refused  other  relief 
because  he  has  not  joined  with  himself  other  parties  necessary 
to  entitle  him  to  it. 

The  allegation  in  regard  to  the  death  of  one  of  the  execu- 
tors may  be  stricken  out  on  motion,  and  the  action  be  con- 
tinued for  the  collection  of  the  interest  only. 


276  CASES  IN  THE  SUPREME  COURT        [March, 

Sortore  r>.  Scott. 

The  defect,  if  any,  is  not  a  ground  for  demurrer.  (Code, 
§  144,  sub.  §  5,  and  note  thereto.) 

The  important  question  in  the  case,  however,  is  whether 
the  plaintiff  can  maintain  the  action  against  the  administra- 
tors of  the  deceased  executor  without  showing  by  the  com- 
plaint that  she  has  exhausted  her  remedy  against  the  survivor, 
or  that  he  is  insolvent. 

If  the  same  principle  applies  to  trustees  and  cestuis  que 
trust  that  applies  to  joint  debtors  and  their  creditors,  this 
action  cannot  be  maintained,  for  it  is  considerably  settled 
that  in  the  case  of  joint  debtors  the  representatives  of  a 
deceased  co-debtor  are  not  liable,  unless  the  survivor  is  insol- 
vent or  the  remedy  at  law  against  him  is  exhausted.  (Hill 
on  Trustees,  1576,  1577 ;  4  Abb.  Dig.,  319,  title  Partner- 
ship, §  277,  et  seq.) 

The  Code  has  not  changed  the  rule.  ( Voorhis  v.  Childs, 
17  N.  Y.,  354.) 

A  different  rule  prevails  in  courts  of  equity  in  England. 
(2  Williams  on  Exrs.,  1577,  1578.) 

I  am  satisfied  that  the  same  rule  does  not  apply  to  trustees 
that  is  applied  to  joint  debtors. 

In  England,  it  is  well  settled  that  the  representatives  of 
a  deceased  trustee  may  be  joined  with  the  surviving  trustee 
in  an  action  in  equity  founded  on  a  breach  of  trust.  (Hill 
on  Trustees,  520  ;  Lyon  v.  Kingdon,  1  Coly,  184 ;  KnotcJibull 
v.  Fearnhead,  3  M.  &  Cr.,  122;  Munch  v.  Cockerell,  8 
Simons,  219.) 

In  none  of  the  cases  that  I  have  examined  is  it  suggested 
that  the  right  to  join  the  representatives  of  the  deceased 
executor  with  the  survivor  rests  in  any  degree  on  the  joinder, 
in  cases  of  joint  debtors. 

It  seems  to  be  applied  to  cases  of  breach  of  trust,  not  by 
reason  of  any  analogy  to  any  other  class  of  cases,  but  because 
it  properly  applies  to  them. 

When  an  account  of  the  assets  is  sought,  the  representa- 
tives of  a  deceased  executor  must  be  joined  with  the  surviving 


1871.]  OF  THE  STATE  OF  NEW  YORK.  277 


Sortore  v.  Scott. 


executor.     (Hall  v.  Austin,  2  Coly,  510  ;  Holland  v.  Prwt  • 
1  Myl.  &  K,  237 ;  2  Williams  on  Executors,  1827.) 

There  are  considerations  which  make  it  proper,  in  case  of 
the  death  of  a  partner,  that  a  creditor  desiring  to  proceed  in 
equity  against  the  representatives  of  a  deceased  partner  should 
allege  and  prove  the  insolvency  of  the  surviving  partner, 
that  have  no  application  to  an  action  against  a  surviving 
trustee  and  the  representatives  of  a  deceased  one  for  breach 
of  trust. 

In  the  case  of  partners,  the  partnership  property  is  pri- 
marily liable  for  the  partnership  debts,  and  the  surviving 
partner,  as  between  him  and  the  representatives  of  his 
deceased  partner,  is  primarily  liable  for  such  debts,  because 
he  is  in  law  and  in  fact  the  legal  owner  of  the  partnership 
assests,  and  is  himself  also  individually  liable  for  them.  It 
is  but  just,  the  partnership  effects  should  be  applied  to  the 
payment  of  the  partnership  debts  before  the  individual  pro- 
perty of  the  deceased,  to  which  his  individual  creditors  have 
the  better  right,  should  be  applied  to  the  partnership  debts. 

But  when  the  action  is  for  breach  of  trust,  it  is  in  effect 
for  a  personal  tort,  of  which  both  the  survivor  and  the  deceased 
were  personally  liable,  and  the  individual  property  of  each 
may  be  appropriated  to  redress  the  wrong. 

There  is  no  joint  property  either  legally  or  equitably  pri- 
marily liable,  and  the  liability  of  the  joint  property  is  the 
reason  why  resort  must  be  first  had  against  the  survivor. 

If  an  action  at  law  lay  for  breach  of  trust  it  must  neces- 
sarily be  broright  against  the  surviving  trustee.  But  as  the 
remedy  is  in  equity,  its  rules  as  to  the  joinder  of  parties  apply 
and  they  make  it  necessary  to  unite  all  who  ought  to  con- 
tribute to  the  redressing  of  the  wrong. 

I  do  not  lind  that  the  attention  of  our  courts  has  ever 
been  called  distinctly  to  the  question,  so  that  it  can  properly 
be  said  to  have  been  decided. 

The  question  might  have  been  raised  in  King  v.  TaXbot 
(50  Barb.,  453,  and  which  was  affirmed  in  40  N.  Y.,  76). 

That  was  an  action  by  a  cestui  gue  trust  against  the  sur- 


2/8  CASES  IF  THE  SUPREME  OOUKT        [March* 

Sortore  ».  Scott. 

ving  trustee  and  the  personal  representatives  of  a  deceased- 
trustee  to  compel  an  accounting  and  the  payment  of  what 
might  be  found  due  to  plaintiff  on  account  of  her  legacy. 

It  was  not  suggested  by  the  counsel  for  the  defendants  that 
there  was  an  improper  joinder  of  parties  defendant,  and  I 
am  quite  sure  the  counsel  who  argued  the  case  for  the  defend- 
ants in  both  courts  would  not  have  overlooked  or  waived  so 
obvious  a  defect  had  he  supposed  it  existed.  Nor  would  the 
defect  have  escaped  the  attention  of  the  judges  of  both  courts- 
in  which  the  case  had  been  carefully  considered,  although 
they  might  not  have  deemed  themselves  at  liberty  to  dismiss 
the  action  because  of  the  improper  joinder  of  defendants. 

The  only  serious  difficulty  to  the  joinder  arises  from  the 
different  judgments  that  must  be  entered  in  case  the  plaintiff 
establishes  a  cause  of  action ;  against  the  survivor  it  must  be 
de  J>onis  propriiSy  against  the  representatives  it  must  be  de 
bonis  testato  rio. 

A  court  of  law  could  not  render  both  these- judgments  in 
the  same  action.  Courts  of  equity,  however,  have  found  no 
difficulty  in  rendering  such  judgment,  as  is  shown  by  the; 
practice  in  the  English  courts. 

My  conclusion  is  that  the  surviving  trustee  and.  the  repre- 
sentatives of  the  deceased  one  are  properly  joined. 

Assuming  that  the  representatives  of  the  deceased  trustee 
are  properly  joined,  they  are  liable  personally  only  to  the 
extent  of  the  assets  which  have  come  to  their  hands  pro- 
perly applicable  to  the  payment  of  the  claim-  for  which  the 
action  is  brought. 

On  the  death  of  Henry  Sortore,  the  trust  devolved  on  the 
surviving  trustee. 

The  administrators  of  Henry  have  nothing  to  do  with  the 
trust  funds ;  they  can  discharge  none  of  the  duties  of  the  trust, 
and  cannot  be  compelled  to  give  security  for  the  fund,  and,  not 
being  trustees,  they  cannot  be  removed. 

In  these  portions  of  the  relief  sought,  they  have  no  inte- 
rest, and  hence  the  action  cannot  be  prosecuted  against  then* 
for  any  such  purpose. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  279 


Sortore  c.  Scott. 


It  is  alleged  that  the  defendants  refused,  on  demand,  to  pay 
the  interest  or  replace  the  $1,000,  and  this  demurrer  admits. 
So  far,  then,  as  a  demand  is  essential  to  a  right  of  action,  it  is 
a  conceded  fact  in  the  case. 

The  defendants'  counsel  insists  that  there  was  no  breach  of 
trust  during  the  life  of  Henry,  but,  on  the  contrary,  it  occur- 
red after  his  death. 

This  is  a  mistake.  The  complainant  distinctly  avers  that  both 
loaned  the  money  and  both  were  guilty  of  carelessness  and 
negligence  in  reference  thereto.  This  is  admitted  by  the 
demurrer,  and  must  be  taken  as  true. 

If  these  views  are  correct,  it  follows,  1st,  that  the  plaintiff 
cannot  unite  in  one  action  a  claim  for  the  interest  due  her 
under  the  will  and  the  equitable  relief  claimed  in  the  com- 
plaint. The  interest  is  recoverable  against  the  surviving  exe- 
cutor in  an  action  at  law. 

2d.  If  she  elects  to  prosecute  the  action  in  order  to  obtain 
the  equitable  relief,  the  claim  for  interest  must  be  aban- 
doned and  the  complaint  amended  by  striking  therefrom  all 
allegations  in  reference  thereto. 

3d.  If  the  plaintiff  desires  an  accounting,  and  that  security 
be  given  for  the  $1,000  which  has  been  lost,  the  other  lega- 
tees must  be  made  parties  to  the  action. 

4th.  If  she  desires  to  recover  the  money  lost  by  the  mis- 
conduct of  the  trustees,  the  other  legatees  are  proper  parties, 
and  the  representatives  of  the  deceased  executor  are  properly 
joined. 

5th.  That  these  two  causes  of  action  may  be  united  in  the 
same  complaint. 

The  order  of  the  Special  Term  pmst  be  reversed  and  judg- 
ment ordered  for  the  defendant  on  the  demurrer,  with  leave 
to  plaintiff  to  amend  within  twenty  days  from  service  of  a 
copy  of  this  order,  on  payment  of  costs  in  the  Special  Term 
and  of  the  appeal. 


280  CASES  IN  THE  SUPREME  COURT          [Jan., 

Tyler  v.  Araes. 


RODOLPHUS  D.  S.  TYLEK,  Respondent,  v.  HENKY  M.  AMES, 

Appellant. 

e  280,        (GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY,  1872.) 

24h  176 

ipia  39(1  A  contract  to  employ  an  agent  for  a  year,  if  he  "  could  fill  the  place  satis- 

factorily," maybe  terminated  by  the  employer  when,  in  his  judgment, 
the  agent  fails  to  meet  that  requirement  of  that  contract. 

THIS  was  an  appeal  from  a  judgment  for  the  plaintiff, 
entered  upon  the  report  of  a  referee.  The  facts  are  stated  in 
the  opinion. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  contract  of  hiring,  as  found  by  the 
referee,  was  that  plaintiff  "  should  serve  as  defendant's  agent 
in  the  sale  of  engines  manufactured  by  defendant,  for  the 
term  of  one  year,  if  plaintiff  could  fill  the  place  satisfacto- 
rily" The  service  commenced  on  the  4th  April,  1867. 
Plaintiff  was  sent  to  Chicago  to  look  after  defendant's  inte- 
rests in  that  vicinity.  In  the  latter  part  of  July,  plaintiff 
was  taken,  sick,  and  he  remained  sick  during  the  month  of 
August,  and  into  the  fore  part  of  September,  1867.  About 
the  20th  August  the  defendant  went  to  Chicago  and  found 
the  plaintiff  sick.  Although  it  would  seem  that  it  was  not 
impossible  for  plaintiff  to  attend  to  defendant's  affairs,  it  was 
difficult  for  him  to  do  so,  and  for  some  days  he  was  not  well 
enough  to  go  to  his  office.  The  defendant,  finding  plaintiff 
in  this  condition,  discharged  him,  as  not  able  to  fill  the  place, 
which  he  was  employed  to  fill,  satisfactorily.  The  plaintiff 
insists  that  he  was  discharged  in  violation  of  the  contract  of 
hiring,  and  that  he  is  entitled  to  recover  his  wages  for  the 
residue  of  the  year. 

It  was  for  defendant  to  determine  when  plaintiff  failed  t& 
fill  the  place  of  agent  satisfactorily,  and  I  know  of  no  one 
who  is  authorized  to  review  his  decision. 

The  word  "  satisfactorily  "  refers  to  the  mental  condition 


1872.]  OF  THE  STATE  OF  NEW  YORK.  281 

Tyler  v.  Ames. 

of  the  employer,  and  not  the  mental  condition  of  a  court  or 
jury.  The  right  of  determining  whether  the  plaintiff  filled 
the  place  of  agent  satisfactorily  must,  from  the  nature  and 
necessity  of  the  case,  belong  to  the  person  whose  interests 
are  directly  affected  by  the  plaintiff's  action.  To  require  the 
employer,  under  such  a  contract,  to  prove  that  plaintiff  did 
not  fill  the  place  satisfactorily,  would  be  to  require  of  him  an 
impossibility,  unless  his  own  oath  was  taken  as  to  his  mental 
status  on  the  subject.  If  he  is  required  to  prove  facts  and 
circumstances  that  would  justify  him  in  feeling  dissatisfied 
with  the  manner  plaintiff  filled  his  office,  it  would  be  annulling 
this  clause  of  the  contract,  as,  without  such  a  clause,  he  would 
have  the  right  to  dismiss  the  plaintiff  if  he  did  not  properly 
perform  his  duties. 

The  question  is  quite  similar  to  the  one  that  is  sometimes 
raised  on  chattel  mortgages,  containing  a  clause  authorizing 
the  mortgagee  to  take  the  property  and  sell  it  when  he  deems 
himself  insecure.  The  weight  of  authority  is  in  favor  of  the 
right  of  the  mortgagor  to  take  and  sell  the  property  without 
any  obligation  to  prove  that  the  facts  and  circumstances  sur- 
rounding the  parties  justified  him  in  deeming  himself  inse- 
cure. (Huggans  v.  Fryer,  1  Lans.,  276 ;  Chadwick  v.  Lamb, 
29  Barb.,  518  ;  Rich  v.  Milk,  20  id.,  616  ;  Hall  v.  Sampson, 
19  How.  Pr.,  481 ;  Farrell  v.  Hildredtk,  38  Barb.,  178.)  If, 
however,  the  defendant  was  bound  to  show  that  he  had  suffi- 
cient reason  for  not  being  satisfied  with  the  ability  of  the 
plaintiff  to  fill  the  place  satisfactorily,  the  proof  is  ample  to 
authorize  him  to  dismiss  the  plaintiff. 

The  clause  was  not  intended  to  be  limited  in  its  operations 
to  any  particular  period  of  time  after  the  plaintiff  entered  upon 
his  duties,  but  authorized  the  termination  of  the  hiring  at  any 
time  during  the  year,  when  plaintiff,  by  disease,  by  indul- 
gence in  bad  habits,  by  neglect  of  duty,  or  in  any  other  way, 
rendered  himself  unfit  or  incapable  of  performing  his  duties. 
I  cannot  resist  the  conclusion  that  plaintiff  was  properly  dis- 
charged. 

Several  of  the  findings  of  fact  are  not  justified  by  the  evi- 
LA.NSING — VOL.  VI.  36 


282  CASES  IN  THE  SUPREME  COURT       [March, 

Palmer  v.  Lawrence. 

dence,  but  it  is  unnecessary  to  consider  them,  as  the  judg- 
ment must  be  reversed,  whatever  our  conclusion  may  be  as  to 
those  findings. 

Judgment  reversed  and  new  trial  ordered,  costs  to  abide 
the  event. 


MANNING  C.  PALMEK,  Appellant,  v.  ALMON  H.  LAWRENCE, 
Respondent. 

A 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  MARCH,  1872.) 

After  jurisdiction  acquired,  assessors  act  judicially  in  determining  upon  the 
amount  of  the  assessment,  the  right  to  exemption  and  the  liability  of  the 
property  to  assessment,  and  are  not  liable  for  error  in  the  determination. 

But  assessors  must  make  their  assessment  at  the  peril  of  being  made  per- 
sonally responsible  if  they  assess  persons  who  are  not  inhabitants  of  their 
town. 

Accordingly,  where  trustees  of  a  school  district  erred  in  determining  that 
the  plaintiff  was  assessable  as  an  inhabitant  of  their  school  district  where 
he  had  taken  up  his  abode  temporarily,  and  assessed  him  for  school  pur- 
poses, they  were  held  liable  for  sale  of  his  property  under  their  warrant 
for  collection  of  the  tax. 

The  cases  where  inferior  tribunals  and  officers  of  limited  jurisdiction,  are 
required  to  proceed  upon  proofs  presented  to  them,  and  those  in  which 
they  act  ex  parte,  in  determining  the  question  of  their  jurisdiction,  dis- 
tinguished. 

THIS  was  an  appeal  by  the  plaintiff  from  a  judgment  entered 
upon  a  nonsuit.  The  facts  are  stated  in  the  opinion. 

Sedgwick,  Kennedy  da  Tracy,  for  the  appellant. 
Pratt,  Mitchell  &  J3rown,  for  the  respondent. 
Present — MTTLLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  J J. 

MULLIN,  P.  J.  For  a  number  of  years  prior  to  February, 
1869,  the  plaintiff  resided  and  did  business  in  the  city  of 
Syracuse.  In  that  month  he  sold  the  house  in  which  he  lived, 
and  hired  a  house  with  a  few  acres  of  land  in  the  town  of 
Clay  for  a  year,  and  with  his  family  went  into  possession  of 


1872.]          OF  THE  STATE  OF  NEW  YORK.  283 

Palmer  ».  Lawrence. 

said  premises  about  the  1st  of  March  of  the  same  year,  and 
continued  to  reside  therein  until  about  November  following, 
when  he  moved  back  into  the  city,  where  he  still  resides. 

When  plaintiff  sold  his  house  he  intended  to  purchase 
another  in  the  city,  and  intended  to  occupy  the  house  in  Clay 
only  until  he  could  make  such  purchase. 

Within  about  ten  days  after  he  sold,  he  purchased  another 
place,  but  as  it  needed  repairing  he  went  to  reside  on  the 
place  in  Clay,  until  such  repairs  were  completed.  He  moved 
into  the  house  last  purchased  before  the  repairs  were  fully 
completed.  He  took  the  house  in  Clay  for  a  year,  intending 
that  a  sister  of  his,  living  south,  should  occupy  it  during  the 
residue  of  the  year,  from  the  time  he  should  return  to  the 
city. 

Plaintiif  carried  on  a  clothing  store  in  Syracuse,  and 
while  his  family  were  in  Clay,  he  went  out  to  them  every 
night  and  returned  to  his  place  of  business  in  the  morning. 
He  cultivated  the  garden,  and  pastured  a  cow  and  horse  on 
the  land. 

The  residence  of  the  plaintiff,  when  in  Clay,  was  in  school 
district,  No.  12,  composed  of  parts  of  the  towns  of  Clay 
and  Cicero,  in  the  county  of  Onondaga. 

On  the  13th  October,  1868,  a  meeting  of  the  inhabitants 
of  said  district  was  duly  convened,  and  it  was  resolved  to  build 
a  new  school-house  in  said  district.  On  the  2d  of  November 
another  meeting  was  held  and  the  expense  of  the  house  was 
fixed  at  not  exceeding  $2,000. 

On  the  25th  January,  1869,  it  was  voted  to  raise  toward 
building  the  said  house,  by  tax  on  the  district,  $1,000.  This 
sum  was  called  the  first  installment  for  building  the  house. 

On  the  13th  April,  1869,  it  was  voted  to  borrow  $1,200,  tc 
be  applied  toward  erecting  the  house,  and  on  the  7th  June 
the  trustees  were  directed  to  borrow  $200  more  for  the  same 
purpose.  On  the  10th  May,  1869,  the  trustees  were  directed 
to  raise  in  addition  to  the  sums  previously  voted  enough  to 
make  the  sum  of  $2,800. 

On  the  6th  February,  1869,  the  school  commissioners  for 


284  CASES  IN  THE  SUPREME  COURT       [March, 

Palmer  v.  Lawrence. 

the  first  commission  district  of  said  county  authorized  the 
district  to  raise  $2,000  for  the  purpose  of  building  a  school- 
house  in  said  district,  and  to  levy  the  sum  by  tax  on  the  taxa- 
ble property  of  said  district.  The  trustees  assessed  upon 
the  taxable  inhabitants  the  sum  of  $2,015,  being  $1,800  for 
building  the  new  school-house,  ninety  dollars  for  interest  on 
money  borrowed  and  applied  to  the  same  use,  and  $125  to 
pay  teachers'  wages.  Amongst  others  who  were  assessed  was 
the  plaintiff  for  $3,000  personal,  and  the  amount  of  tax  was 
ninety-six  dollars. 

About  the  time  the-  assessment  was  made,  the  plaintiff 
told  one  of  the  trustees  that  his  residence  was  in  Syracuse ; 
that  he  was  assessed  for  $3,000  personal,  and  tried  to  induce 
the  trustee  to  omit  to  assess  him,  but  the  latter  insisted  he 
was  liable  to  assessment  in  said  district,  and  he  was  assessed 
accordingly. 

The  trustees  on  the  28th  October,  1869,  issued  their  war- 
rant to  the  collector  of  said  district,  who  by  virtue  thereof 
seized  and  sold  a  wagon  belonging  to  the  plaintiff  worth 
$350.  For  this  alleged  injury  the  plaintiff  brought  this 
action  against  Lawrence  Millard  and  "Wadkins,  the  trustees 
of  said  district,  who  issued  the  warrant.  They  justified  the 
seizure  and  sale  under  the  warrant,  and  proceedings  of  the 
district  meetings. 

On  the  trial  it  appeared  that  the  warrant  was  dated  28th 
October,  1869,  and  was  renewed  by  Lawrence  and  Russell, 
two  of  the  said  trustees,  on  the  30th  November,  for  thirty 
days.  This  renewal  was  approved  by  the  commissioners  ot 
schools.  On  this  proof  the  defendant  moved  to  discharge 
the  defendant  Millard,  and  he  was  discharged  accordingly. 

The  court  held  and  decided  that,  upon  evidence,  the  trustees 
acted  judicially  in  assessing  the  plaintiff,  and  \vere  not  liable 
therefor. 

The  defendant's  counsel  insisted  that  the  proceedings  to 
raise  the  money  for  the  school-house  were  illegal,  as  they 
voted  to  raise  a  larger  sum  than  by  law  they  were  entitled 
to  do.  In  support  of  this  branch  of  the  case,  the  defendant 


1872.]          OF  THE  STATE  OF  NEW  YORK.  285 

Palmer  v.  Lawrence. 

offered  to  prove  that  the  trustees  collected  a  tax  of  $1,000 
toward  building  said  school-house,  but  the  objection  being 
taken  that  the  warrant  issued  must  be  produced,  the  defend- 
ant was  unable  to  produce  it,  and  failed  to  show  its  loss  or 
destruction.  Parol  evidence  of  its  contents  was  rejected, 
and  the  plaintiff's  counsel  excepted. 

The  court  thereupon  nonsuited  the  plaintiff,  and  ordered 
the  motion  for  a  new  trial  to  be  heard  in  the  first  instance  in 
the  General  Term. 

It  will  be  seen,  from  the  foregoing  statement  of  the  pro- 
ceedings on  the  trial,  that  the  plaintiff  was  nonsuited  solely 
on  the  ground  that  the  trustees  had  sufficient  evidence  before 
them  to  authorize  them  to  find  and  decide  that  the  plaintiff 
was  a  resident  of  their  district,  and  that  in  so  deciding  they 
acted  judicially,  and  are  not  therefore  responsible  for  any 
error  committed  by  them  in  so  acting.  In  other  words,  that 
their  decision  that  the  plaintiff  was  a  taxable  inhabitant  of 
their  district  was  a  judicial  one,  and  having  so  decided,  they 
acquired  jurisdiction  to  assess  the  plaintiff,  and  to  enforce  the 
collection  of  the  tax  resulting  therefrom,  and  such  decision 
is  a  perfect  protection  to  the  trustees  as  well  as  the  collector. 

It  is  an  elementary  principle  of  law,  that  inferior  courts 
and  officers  of  limited  jurisdiction  are  liable  if  they  arrest  the 
person  or  dispose  of  the  property  of  the  citizen  without  hav- 
ing acquired  jurisdiction  so  to  do  (Bigelaw  v.  Stearns,  12  J. 
K.,  39),  and  the  party  affected  may  show  in  a  collateral  action 
the  want  of  jurisdiction.  This  principle  is  subject  to  this 
modification,  that  when  certain  facts  are  to  be  proved  before 
such  court  or  officers  in  order  to  confer  on  it  or  him  jurisdic- 
tion of  the  evidence  tending  to  establish  such  fact,  and  is  fairly 
sufficient  to  call  on  the  court  or  officers  to  exercise  his  judg- 
ment as  to  the  sufficiency  of  such  proof,  jurisdiction  is  acquired 
if  the  facts  are  found,  although  they  may  not  be  sufficient 
in  the  opinion  of  a  tribunal  sitting  in  a  review  of  such  a 
decision  to  establish  such  facts.  (Miller  v.  Britikerlioff,  4 
Denio,  118 ;  Staples  v.  Fair  child,  3  New  York,  41 ;  Skin 
ner  v.  KeUy,  10  id.,  355.) 


286  CASES  IN  THE  SUPREME  COURT       [March, 

Palmer  v.  Lawrence. 

It  is  upon  this  principle  that  the  judge  held  at  the  trial 
that  the  trustees  acquired  jurisdiction  to  assess  the  plaintiff. 

It  was  known  to  them  that  the  plaintiff  and  his  family  had 
removed  from  Syracuse  into  their  district,  having  hired  a 
house  for  a  year  and  went  to  his  place  of  business  daily  in 
Syracuse  and  returned  to  his  family  every  night. 

This  was  evidence  of  residence ;  and  if  the  principle  above 
stated  applies  to  the  case,  it  fully  justifies  the  defendant  in 
deciding  that  he  was  a  taxable  inhabitant  of  their  district. 
By  section  100  of  the  school  act,  school  district  meetings  are 
authorized  to  lay  a  tax  on  the  taxable  inhabitants  of  the  dis- 
trict, to  build  school-houses,  etc. ;  and  by  section  126  the  trus- 
tees are  authorized  to  make  out  a  tax-list  of  every  district  tax 
voted  by  a  district  meeting,  containing  the  names  of  all  the 
taxable  inhabitants  residing  in  the  district  at  the  time  of  mak- 
ing out  such  list,  and  to  annex  thereto  a  warrant  for  its  col- 
lection. 

From  these  provisions  it  follows  that,  in  order  to  render  a 
person  liable  to  assessment  for  school  purposes,  he  must  be  a, 
taxable  inhabitant  of  the  district  when  the  tax-list  is  made  out 
by  the  trustees. 

If  he  is  not  a  taxable  inhabitant,  the  trustees  have  no  juris- 
diction to  assess  him. 

In  Suydam  v.  Keyes  (13  J.  R.,  444),  a  collector  was  sued  for 
selling  the  property  of  a  non-resident  to  pay  a  school-tax 
assessed  on  him  for  property  owned  by  him  in  the  district. 
The  court  say  the  trustees  had  no  jurisdiction  to  assess  the 
plaintiff,  as  he  was  not  an  inhabitant  of  the  district,  and  both 
trustees  and  collector  were  trespassers.  So  much  of  the  case  as 
holds  the  collector  liable,  has  been  since  repeatedly  overruled. 
But  the  liability  of  the  trustees  has  not  been  questioned 
except  by  two  or  three  cases,  to  be  referred  to  hereafter. 

In  Morse  v.  James,  (Wils.  122,)  an  act  of  parliament  gave 
an  inferior  court  jurisdiction  over  minors,  it  was  held  that  a 
plea  of  justification  must  aver  that  the  defendant  was  a  minor 
at  the  commencement  of  the  suit. 

A    commission  of   bankruptcy  issued   against   a    person 


1872.]          OF  THE  STATE  OF  NEW  YORK.  287 


Palmer  t>.  Lawrence. 


exempt  from  the  operation  of  the  bankrupt  law,  is  void. 
(Perkin  v.  Proctor,  2  "Wils.,  382.)  An  act  of  the  legislature 
of  Massachusetts  authorized  the  justice  of  the  peace  to  issue 
his  warrant  for  the  arrest  of  persons  living  in  his  county  found 
traveling  on  Sunday;  it  was  held  that  a  person  not  an  inhabi- 
tant was  not  liable  to  arrest,  and  as  to  him  the  warrant  was 
void.  (Pearce  v.  Atwood,  13  Mass.,  324,  342.) 

So  if  an  execution  be  issued  by  a  justice  against  a  persoi. 
exempt  from  such  process,  the  justice  is  a  trespasser.  (Per 
cival  v.  Jones,  2  J.  Gas.,  49 ;  in  Bowman  v.  jRuss,  6  Cow., 
234,  237.) 

An  application  was  made  by  the  overseer  of  the  poor  of  a 
town,  pursuant  to  a  statute  authorizing  it,  for  a  warrant  to 
seize  the  property  of  the  plaintiff  on  the  ground  that  he  had 
absconded,  leaving  his  family  to  be  supported  by  the  town. 
It  was  held  that  in  an  action  by  the  plaintiff  .for  the  unlawful 
taking  of  his  property  the  overseer  must  aver  that  the  plain- 
tiff had  left  his  family  a  charge  on  the  town.  Such  averment 
was  necessary  to  give  jurisdiction,  and  plaintiff  might  rebut 
it  by  replication. 

A  party  is  not  estopped  by  the  proceedings  and  judgment 
of  an  inferior  jurisdiction  to  question  its  jurisdiction,  and 
enough  must  be  stated  by  the  party  who  would  avail  himself 
of  such  proceedings  and  judgment  to  show  that  it  had  juris- 
diction. 

It  was  held  in  Nichols  v.  Walker  (Cro.  Car.,  394)  that 
a  rate  made  by  the  justices  of  A.  on  an  inhabitant  of  B.  is 
void. 

The  Supreme  Court  of  Massachusetts,  in  Agry  v.  Young 
(11  Mass.,  220),  held  that  an  action  of  trespass  could  be 
maintained  against  the  assessors  of  the  town  of  Pittston  for 
illegally  assessing  the  plaintiff,  who,when  the  tax  was  assessed, 
was  a  resident  of  Hallowell. 

In  the  following  cases,  the  assessors  or  the  churches  were 
held  liable  for  illegally  assessing  the  plaintiffs  for  the  support 
of  divine  worship  after  the  plaintiffs  had  ceased  to  be  con- 
nected with  the  church  for  whose  benefit  such  taxes  were 


288  CASES  IN  THE  SUPREME  COURT       [March, 


Palmer  v.  Lawrence. 


assessed.  (Ingalls  v.  JSosworth,  5  Pick.,  498 ;  Sumner  v. 
First  Parish  in  Dorchester,  4  id.,  361 ,  Gage  v.  Currier^ 
id.,  399.) 

In  Wise  v.  Withers  (3  Cranch,  331),  a  collector  of  militia 
fines  was  held  liable  in  trespass  for  seizing  and  selling  the  pro- 
perty of  the  plaintiff,  upon  a  warrant  issued  by  court-martial 
in  the  district,  to  collect  a  fine  imposed  on  him  for  not  per- 
forming military  duty,  he  being  a  justice  of  the  peace  in 
said  district  and  by  law  exempt  from  such  duty. 

MARSHALL,  C.  J.,  says  :  It  follows  that  a  court-martial  has 
no  jurisdiction  over  a  justice  of  the  peace  as  a  militia  man  ; 
he  could  never  be  legally  enrolled,  and  it  is  a  principle  that 
a  decision  of  such  a  tribunal,  in  a  case  clearly  without  its 
jurisdiction,  cannot  protect  the  officer  who  executes  it. 

I  shall  not  refer  to  any  more  of  the  cases  on  the  quest! or 
of  jurisdiction.  They  will  be  found  collected  in  2  C.  &H 
notes,  997,  and  9*98,  1016,  etc. 

In  all  the  cases  cited  relating  to  taxation,  those  who  levied 
the  tax  were  bound  to  inquire,  before  making  the  assessment, 
whether  the  party  they  proposed  to  assess  was  an  inhabitant 
of  their  town,  district  or  parish,  just  as  the  trustees  in  the 
case  before  us  were  bound  to  inquire.  It  is  to  be  presumed 
they  did  inquire  and  became  satisfied  that  the  party  was  a 
resident ;  yet  their  decision,  that  they  were  residents,  was 
held  not  to  confer  jurisdiction,  and  of  course  it  followed  they 
were  not  judicial.  If  assessors  could  confer  on  themselves 
jurisdiction  by  deciding  that  the  persons  whose  names  were 
entered  on  the  list  were  residents  of  their  towns  or  districts, 
the  greatest  injustice  might  be  done  to  a  large  class  of  per- 
sons, without  any  means  of  protection  against  or  escape 
from  it. 

If  residing  with  one's  family  for  a  few  days  between  the  1st 
of  May  and  the  1st  of  July  is  sufficient  evidence  to  author- 
ize the  assessors  of  a  town  to  assesss  a  person  found  by  them 
upon  such  evidence  to  be  a  resident,  and  if  such  decision  is 
conclusive  on  the  question,  a  person  who  goes  with  his  family 
to  Lake  George,  Saratoga,  New  York,  Sharon  and  Richfield 


1872.]  OF  THE  STATE  OF  NEW  YORK.  289 

Palmer  v.  Lawrence. 

Springs,  and  thence  to  Niagara  and  the  lakes  lying  in  the 
center  of  the  State,  may  be  assessed  in  each  of  the  counties 
in  which  those  places  of  resort  are  located,  and  the  taxes  in 
each  and  all  enforced  against  him  without  notice  of  being 
taxed  in  either,  until  the  collectors,  with  their  warrants  in 
their  hands,  demand  his  money  or  his  property  to  be  sold  to 
pay  such  tax. 

It  is  no  answer  to  say  that  such  an  outrage  is  impossible. 
If  it  may  occur,  we  must  act  on  the  assumption  that  it  will 
occur.  It  is  by  no  means  unusual  now  for  a  man  to  be  taxed 
in  two  and  occasionally  in  three  towns,  when  he  is  in  law  and 
in  fact  taxable  in  but  one.  When  assessors  find  that  they 
may  assess  any  person  who  appears  to  reside  in  their  towns 
and  not  be  personally  liable  for  doing  it,  it  is  more  than  pro- 
bable that  the  power  will  be  exercised  whenever  an  opportu- 
nity is  presented.  To  prevent  this  abuse  the  assessors  must 
make  their  assessment  at  the  peril  of  being  made  personally 
responsible  if  they  assess  persons  who  are  not  residents  of 
their  towns. 

It  would  seem  to  be  a  great  hardship  to  subject  men  to  an 
action  who  have  in  good  faith  endeavored  to  perform  a  duty 
imposed  upon  them  by  law,  and  for  the  non-performance  of 
which  duty  they  are  liable  to  punishment.  The  hard- 
ship is  very  much  increased  when  all  the  facts  and  circum- 
stances known  to  them  authorize  and  justify  their  action,  and 
the  facts  which  render  their  action  unlawful  are  known,  and 
from  the  nature  of  the  case  can  be  known  only  to  the  per- 
son assessed. 

In  some  of  the  cases  cited  from  the  Massachusetts  Reports, 
the  person  assessed  for  the  support  of  the  church  lived  in  the 
parish  and  actually  attended  divine  service  in  the  church ;  but 
as  by  law  a  member  might  obtain  from  the  officers  of  the 
church  to  which  he  belonged  a  certificate  that  he  had  with- 
drawn therefrom,  and  filing  it  with  the  officers  of  another 
church  with  which  he  desired  to  connect  himself,  he  was  not 
liable  to  assessment  in  any  church  except  the  one  with  which 
he  had  thus  connected  himself,  and  the  assessors  were  held 

LANSING — VOL.  VI.        37 


290  CASES  IN  THE  SUPREME  COURT       [March, 


Palmer  v.  Lawrence. 


liable  for  illegally  assessing  him,  notwithstanding  they  saw 
that  he  was  an  attendant  of  the  church  for  which  he  was 
assessed,  and  were  not  informed  that  he  had  united  with 
another  church. 

The  court,  in  deciding  the  case,  regret  the  hardship  which 
the  decision  brought  upon  the  assessors,  but  the  protection  of 
the  public  demanded  that  these  subordinate  officers  should 
not  be  permitted  to  secure  to  themselves  personal  irresponsi- 
bility when  acting  without  jurisdiction  by  deciding  that  they 
had  it. 

I  have  searched  in  vain  for  a  case  in  which  it  has  been  held 
that  a  court  or  officer  of  limited  jurisdiction  has  been  held  to 
have  acquired  jurisdiction  over  the  person  of  a  man  upon 
ex  parte  evidence,  when  the  law  provided  for  no  notice  to 
him  of  the  proceeding  and  no  opportunity  of  being  heard 
upon  the  right  of  the  officer  to  entertain  or  set  on  foot  the 
proceeding,  except  two  or  three  recent  cases,  which  I  shall 
consider  before  I  am  through. 

In  proceedings  to  obtain  attachments  against  the  property 
of  absent,  absconding,  concealed  and  non-resident  debtors,  the 
application  is  exparte,  and  the  officer  acquires  jurisdiction  if  the 
proofs  offered  prove,  or  fairly  tend  to  prove,  the  facts  required 
by  the  statute  to  be  established  to  entitle  the  party  to  the 
attachment.  But  the  jurisdiction  extends  only  to  the  issuing 
of  the  process  and  the  seizure  and  sale  of  the  property.  No 
personal  liability  can  be  created  until  the  party  proceeded 
against  has  been  served  personally,  or  in  some  other  way  pro- 
vided by  the  legislature,  with  notice  of  the  proceedings,  and 
has  had  an  opportunity  to  contest  the  jurisdiction  of  the  officer. 

But  in  the  case  of  an  assessment,  which  is  to  all  intents  and 
purposes  a  judgment  against  the  person  assessed,  such  judg- 
ment may  be  obtained  without  notice,  without  an  opportu- 
nity to  contest  his  liability,  until  the  collector  comes  with  his 
warrant  and  seizes  his  property.  This  new  rule  of  law  is 
said  to  be  established  by  the  case  of  Brown  v.  Smith  (24 
Barb.,  419),  and  it  is  the^nly  case  I  have  found  in  which  the 
precise  point  now  under  consideration  has  been  decided. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  291 


Palmer  v.  Lawrence. 


The  learned  judge  who  wrote  the  opinion  in  that  case  cites 
no  authority  in  support  of  his  conclusion  that  the  assessors  of 
Plainfield  acted  judicially  in  holding  the  plaintiff's  farm 
assessable  in  that  town  when  it  was  in  law  assessable  only  in 
Winfield,  Herkimer  county,  and  they  were  not,  for  that  rea- 
son, liable  for  the  erroneous  assessment,  if  it  was  erroneous; 
nor  does  he  a§surne  to  inquire  whether  the  law,  as  laid  down 
by  the  courts,  authorized  such  a  conclusion.  The  hardship 
of  the  case  was  so  great  that  the  law  was  made  to  bend 
in  order  to  prevent  it.  The  learned  judge  cites  Weaver 
v.  Devendorf  (3  Den.,  117) ;  Vail  v.  Owen  (19  Barb.,  22)  ; 
Van  Rensselaer  v.  CottreU  (7  id.,  127) ;  Van  Rensselaer  v, 
Whitbeck  (7  id.,  13a). 

In  Weaver  v.  Devendorf,  the  plaintiff  sued  the  defendants, 
assessors  of  Frankfort,  Herkimer  county,  for  assessing  him 
when  he  was  by  law  exempt  from  assessment.  The  plaintiff, 
when  he  was  assessed,  was  an  inhabitant  of  Frankfort ;  the 
assessors,  consequently,  had  jurisdiction  over  him  and  over 
the  subject  of  taxation.  They  had,  therefore,  jurisdiction  to 
determine  whether  the  plaintiff  was  exempt,  and  their  deci- 
sion was  a  judicial  one,  and  they  were  not  liable  for  making 
it  if  it  was  erroneous. 

The  question  now  under  consideration  could  not  arise  in 
that  case,  and  it  furnishes  no  authority  for  the  proposition 
that  a  decision  by  the  assessors  that  they  have  jurisdiction 
is  a  judicial  one,  and  they  are,  therefore,  relieved  from 
liability. 

Vail  v.  Owen  was,  in  all  respects,  like  the  former.  In 
Van  Rensselaer  v.  CottreU  and  Same  v.  Whitbeck,  the  action 
was  for  illegally  assessing  the  plaintiff's  land  under  water, 
lying  in  the  town  of  Sand  Lake  and  in  the  town  of  Green- 
bush,  of  which  towns  plaintiff  was  not  a  resident.  This  mode 
of  assessing  real  property  is  quite  different  from  that  of  assess- 
ing personal.  The  owner  of  personal  property  is  taxable  for 
it  in  the  town  or  ward  in  which  he  lives,  wherever  within 
the  State  such  property  may  be.  But  where  real  property 
does  not  lie  in  the  town  or  ward  in  which  the  owner  lives,  it 


292 


Palmer  v.  Lawrence. 


must  be  assessed  to  the  occupant,  if  there  is  one,  if  not,  then 
as  non-resident  land. 

HARRIS,  J.,  held,  that  because  the  land  was  located  in  the 
town  in  which  the  assessors  acted  they  had  jurisdiction,  and, 
having  jurisdiction,  they  acted  judicially  in  determining  how 
or  to  whom  the  land  should  be  assessed.  The  cases  have, 
therefore,  no  bearing  on  the  question  before  us. 

There  are  numerous  cases  in  which  it  has  been  held,  and  it 
is  now  the  law,  that  after  jurisdiction  acquired,  the  assessors, 
in  determining  the  amount  of  the  assessment,  whether  the 
person  assessed  is  entitled  to  exemption,  and  whether  the  pro- 
perty for  which  the  person  is  assessed  is  subject  to  be  assessed, 
are  all  questions  to  be  judicially  determined  by  the  assessors, 
and  they  are  not  liable  for  errors  committed  in  so  doing. 
(Barhydt  v.  Shepard,  35  N".  Y.,  238;  The  People  v.  Reddy, 
43  Barb.,  540  ;  Henderson  v.  Brown,  1  Caines.,  92  ;  Hill  v. 
Selick,  21  Barb.,  207.) 

Whatever  weight  these  cases  might  be  entitled  to,  they  can 
not  overrule  the  Court  of  Appeals.  That  court  has  decided 
the  very  point  in  the  case  of  Mygatt  v.  Washburn  (15  JS".  Y., 
316),  and  in  The  People  v.  Supervisors  of  CJienango  (\.  Kern., 
573).  These  cases  are  alike  in  their  facts,  and  the  same  result 
was  arrived  at  by  the  Court  of  Appeals  in  both. 

The  action  was  brought  against  the  defendant,  an  assessor 
of  Oxford,  Chenango  county,  for  illegally  assessing  the  plain- 
tiff in  that  town,  when  he  (plaintiff)  was  in  fact  an  inhabitant 
of  the  county  of  Oswego. 

The  plaintiff  resided  in  Oxford  until  the  25th  of  May, 
1846,  when  he  removed  to  Oswego  county,  where  he  was 
assessed  and  paid  taxes  for  the  year  1846. 

On  the  19th  of  May  of  that  year  the  defendant  called  on 
the  plaintiff,  took  down  his  name,  and  placed  opposite  to  it 
$10,000  as  the  valuation  of  his  personal  property,  and  told 
what  he  had  done. 

The  assessment  was  completed,  a  tax  levied  against  the 
plaintiff,  and  a  warrant  issued  to  collect  the  same ;  and  the 
collector  seized  and  sold  the  plaintiff's  property  to  pay  such  tax. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  293 

Palmer  t>.  Lawrence. 

These  facts  were  admitted  on  the  trial ;  and,  also,  that  the 
assessors  were  diligent  in  their  inquiries  to  ascertain  the 
names  of  the  taxable  inhabitants  of  the  town. 

The  plaintiff  recovered  at  the  circuit,  the  judgment  was 
affirmed  at  the  General  Term  and  by  the  Court  of  Appeals ; 
the  court  holding  that  assessors,  who  enter  upon  their  assess- 
ment roll,  as  liable  to  be  taxed  for  personal  property,  the 
name  of  a  person  not  resident  of  their  town  or  ward  at  the 
time  the  assessment  is  made,  act  without  jurisdiction,  and  are 
liable  for  the  damages  resulting  from  the  collection  of  a  tax 
founded  on  such  entry. 

This  is  a  clear,  distinct  and  unqualified  enunciation  of  the 
principle  of  law  which  applies  to  and  disposes  of  the  ease 
before  us. 

The  respondent's  counsel  distinguishes  the  case  of  Mygatt 
from  the  one  at  bar,  by  saying  that  in  the  case  of  Mygatt 
there  was  no  question  for  an  adjudication,  as  it  was  conceded 
on  both  sides  that  Mygatt  left  the  town  several  weeks  before 
the  day  on  which  the  assessment  is  by  law  presumed  to  be 
made. 

This  concession  was  made  on  the  trial ;  but  it  was  not  con* 
ceded  that  on  the  1st  of  July,  when  the  assessment  is  pre- 
sumed to  have  been  made,  that  the  assessors  knew  Mygatt 
had  removed  to  Oswego.  The  concession  that  the  assessors 
were  diligent  in  their  inquiries  to  ascertain  the  names  of  the 
taxable  inhabitants  rebuts  the  idea  that  they  had  knowledge 
of  his  removal. 

It  is  practically  impossible  for  assessors  to  know  that  each 
person  whose  name  is  on  the  roll  is  an  inhabitant  of  the  town 
on  the  day  the  roll  is  required  to  be  completed. 

They  act  upon  observation  made  and  information  received 
prior  to  that  time;  and  they  necessarily  are  compelled  to 
assess  persons  without  knowing  whether  they  are  in  truth 
inhabitants  of  the  town.  Washburn  knew  that  Mygatt  was 
an  inhabitant  of  his  town  on  the  25th  of  May.  This  was 
evidence  from  which,  in  ninety-nine  cases  out  of  100,  he 
might  safely  assume  he  was  still  an  inhabitant  on  the  1st  of  July. 


294  CASES  IN  THE  SUPREME  COURT      [Marcfc, 


Palmer  v.  Lawrence. 


If,  then,  Mygatt  being  in  Oxford  on  the  25th  of  May  was 
any  evidence  justifying  the  conclusion  that  he  was  there  on 
the  1st  of  July,  his  decision  that  he  was  a  taxable  inhabitant 
was  a  judicial  one. 

The  court  sanction  no-  such  doctrines.  They  were  not  jus- 
tified in  acting  on  any  proof  but  that  which  showed  him  to 
be  an  inhabitant  on  the  1st  of  July.  Their  finding  was  not 
of  the  slightest  consequence.  Their  judicial  power  did  not 
attach  until  they  established  their  jurisdiction  ;  not  by  finding 
it  as  a  fact,  but  by  proving  that  they  acquired  it. 

In  the  case  of  Dorwin  v.  Strickland,  decided  in  this  court,, 
the  same  principles  were  applied,  and  the  assessors  held  lia- 
ble, notwithstanding  they  had  very  strong  evidence  that 
Dorwin  was  a  resident  of  their  town,  while  he  claimed  to  live 
in  another  town  in  the  same  county. 

Until  the  case  of  Mygatt  v.  Washbum  shall  be  reversed, 
it  must  be  treated  as  decisive  of  the  liability  of  assessors 
under  the  same  circumstances. 

If  assessors  have  the  power  to  decide,  upon  facts-  known  to 
them,  that  a  person  assessed  is  a  resident  of  their  town,  it 
would  be  a  fruitless  inquiry  to  attempt  to  ascertain  how 
much  or  how  little  evidence  they  acted  upon.  From  the 
nature  of  the  case,  it  must  consist  of  the  results  of  their  own 
observation  and  of  information,  the  extent  of  which  can  be 
known  only  to  themselves.  So  that  it  is  folly  to  say,  in  one 
case  that  they  had,  and  in  another  that  they  had  not,  sufficient 
evidence  to  authorize  them  to  determine  that  a  person 
assessed  was  an  inhabitant  of  their  town. 

Could  it  be  shown  that  they  had  no  knowledge  whatever 
as  to  the  residence  of  the  person  assessed,  it  might  be  held 
that  their  want  of  jurisdiction  would  be  established ;  but 
nothing  short  of  that  would  establish  it. 

I  have  not  alluded  to  a  class  of  cases  to  which  reference  is 
sometimes  made  in  support  of  the  right  of  inferior  courts  and 
officers  to  decide  judicially  that  they  have  jurisdiction,  which 
decision  protects  them,  although  finally  held  to  be  erroneous. 

I  refer  to  cases  of  proceedings  in  rein,  of  which  Brittam 


1872.]  OF  THE  STATE  OF  NEW  YORK  295 


Palmer  v.  Lawrence. 


v.  Kinnard  (1  Brod.  &  Bing.,  432)  is  a  very  prominent 
example.  In  that  case  it  appeared  that  justices  of  the  peace 
were  authorized  to  seize  and  take  possession  of  any  boat 
which  had  gunpowder  on  board ;  and  the  defendant,  a  justice, 
had  seized  a  vessel  with  masts,  &c.,  having  a  large  quantity 
of  powder  on  board.  He  was  sued  for  such  seizure.  The 
plaintiff  was  nonsuited;  the  court  holding  that  the  justice 
had  jurisdiction  of  the  subject-matter,  which  was  the  vessel 
with  powder  on  board ;  and  having  jurisdiction,  his  decision, 
that  the  vessel  was  a  boat,  was  conclusive,  and  the  action 
could  not  be  maintained. 

This,  like  other  cases  to  which  I  have  referred,  has  no 
application  to  the  one  before  us.  The  justice  had  jurisdic- 
tion, not  because  he  found  it,  but  because  the  property  was 
of  a  description  which  the  act  of  parliament  placed  under  his 
jurisdiction.  . 

I  have  examined  this  case  at  much  greater  length  than  the 
amount  involved  would  either  justify  or  require;  but  the 
question  is  a  very  important  one ;  and,  notwithstanding  the 
Court  of  Appeals  has  decided  this  precise  point,  the  case  of 
Mygatt  v.  WasJiburn  is  doubted,  and  a  review  of  the  cases 
seemed  to  me  to  be  necessary. 

The  case  shows  that  while  the  plaintiff  was  giving  evidence 
to  show  that  he  was  not  a  resident  of  the  district,  he  was  told 
by  the  court  in  substance  that  it  was  of  no  moment  what  facts 
he  might  prove,  as  enough  was  shown  to  justify  the  assessors 
in  deciding  that  he  was  a  taxable  inhabitant  of  the  school 
district ;  and  as  that  decision  was  final  and  conclusive  upon 
the  point,  it  would  be  of  no  avail  to  show  such  decision  to  be 
erroneous.  This  ruling  was  excepted  to  ;  and,  if  the  views  I 
have  advanced  are  sound,  it  was  erroneous. 

It  is  unnecessary  to  consider  the  other  rulings  in  the  case, 
as  a  new  trial  must  be  granted. 

New  trial  granted,  costs  to  abide  event. 


296  CASES  IN  THE  SUPREME  COURT         [June, 

Dunning  v.  Ocean  National  Bank  of  the  City  of  New  York. 


MAET  S.  DUNNING,  Trustee,  &c.,  Respondent,  v.  THE  OCEAN 
NATIONAL  BANK  OF  THE  CITY  OF  NEW  YORK,  Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

No  right  of  action  vests  in  one  named  as  executor  in  a  will,  and  to  whom 
is  given  as  executor  a  trust  under  the  will,  but  who  renounces  the  execu- 
torship  and  refuses  to  assume  or  take  upon  himself  the  trust,  to  recover 
money  belonging  to  the  trust.  In  such  case,  the  trust  remains  vested  in 
the  Supreme  Court  until  the  appointment  by  it  of  a  trustee  under  the 
will,  and  the  statute  of  limitations  runs  against  a  claim  for  such  moneys 
from  the  time  of  the  appointment  and  qualification  of  such  trustee. 

Nor  does  an  administrator  with  the  will  annexed,  appointed  under  the 
will,  become  such  trustee,  or  have  any  right  of  action  for  such  moneys. 

APPEAL  from  a  judgment  entered  upon  the  decision  of 
Justice  DOOLITTLE  at  Special  Term  in  Jefferson  county.  The 
action  was  brought  to  recover  the  surplus  moneys  arising 
from  sale  of  real  estate  upon  mortgage  foreclosure.  The 
facts  are  stated  in  the  opinion. 
*» 

F.  W.  Hubbard,  for  the  appellant. 

Lansing  &  Sherman,  for  the  respondent. 

Present — MULLIN,  P.  J.,  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  only  question  in  the  case 
is,  whether  the  right  of  action  was  barred  by  the  statute  of 
limitations  before  the  action  was  commenced.  The  money 
to  recover  which  this  action  is  brought  came  to  the  possession 
of  the  defendant  on  the  2d  of  July,  1861,  by  means  of  the 
foreclosure  of  a  mortgage,  and  the  purchase  by  the  defend- 
ant of  the  mortgaged  premises  upon  the  sale.  The  purchase 
price  at  the  sale  exceeded  the  amount  due  on  the  mortgage 
and  costs  of  foreclosure,  in  the  sum  of  $1,833.78.  This 
amount  became  and  was  a  trust  fund  under  the  will  of  Mar- 
garet Dunning.  She  was  the  owner  of  the  premises  in  fee, 
subject  to  this  mortgage,  and  died  October  19th,  1857",  leav- 
ing a  last  will  and  testament  by  which  she  devised  the  said 


1872.]  OF  THE  STATE  OF  NEW  YORK.  297 

Dunning  v.  Ocean  National  Bank  of  the  City  of  New  York. 

premises  to  the  executor  named  in  the  will,  in  trust  for  cer- 
tain purposes,  and  appointed  "William  S.  Jennings  sole  execu- 
tor. The  trust  is  conceded  to  be  a  valid  trust.  Jennings 
refused  to  take  upon  himself  the  execution  of  the  will,  by  a 
written  renunciation  in  due  form,  and,  as  the  justice  before 
whom  the  cause  was  tried  finds,  never  accepted  the  trust 
created  by  the  will,  but  refused  to  assume  and  take  upon 
himself  the  same.  No  trustee  was  appointed  to  execute  and 
carry  out  the  trust  until  the  28th  of  December,  1869,  when 
the  plaintiff  was,  by  the  Supreme  Court,  appointed  as  such 
trustee.  She  accepted  the  trust  and  duly  filed  the  bond 
required  by  the  order  by  which  she  was  appointed.  The 
plaintiff,  after  her  appointment  and  acceptance  of  the  trust, 
demanded  the  surplus  money  arising  from  the  sale,  of  the 
defendant,  and  payment  to  her  was  refused,  whereupon  she 
brought  her  action.  If  there  was  no  person  or  party  in 
being,  at  the  time  the  money  in  question  came  to  the  posses- 
sion of  the  defendant,  who  could  lawfully  demand  and 
receive  the  same,  and  in  whom  a  right  of  action1  for  the 
recovery  thereof  vested,  or  since,  until  the  appointment  of 
the  plain  tiff  as  trustee  to  execute  the  trust,  and  her  accept- 
ance, the  action  is  not  barred.  This  is  well  settled.  Until 
there  is  some  one  entitled  to  demand  and  take,  there  is  no 
obligation  to  pay,  and  no  promise  can  be  implied.  The 
statute  does  not  begin  to  operate  till  then.  (Douglass  v. 
Forrest,  4  Bing.,  686 ;  Murray  v.  East  Ind.  Co.,  5  B.  & 
Aid.,  204;  Richards  v.  Richards,  2  id.,  MY ;  Piggott  v. 
Bush,  4  A.  <£  E.,  912 ;  BucUin  v.  Ford,  5  Barb.,  395  ; 
Vareham  v.  Mohawk  Ins.  Co.,  13  Wend.,  267 ;  Davis  v. 
Gaw,  2  Seld.,  124.) 

Before  there  is  any  party  who  can  maintain  an  action,  or 
in  whom  any  right  of  action  has  vested,  there  is  no  contract, 
obligation  or  liability,  express  or  implied,  to  pay.  The  statute 
does  not  commence  to  run  until  a  right  of  action  in  favor  of 
some  one  has  accrued.  It  is  not  at  all  like  the  case  of  a  per- 
son under  a  disability  to  serve,  in  whose  favor  a  right  of 
action  has  accrued.  It  is  a  case  where  a  right  of  action  does 

LAXSIXG — VOL.  "VT         38 


298  CASES  IN  THE  SUPREME  COURT  [June, 

Dunning  v.  Ocean  National  Bank  of  the  City  of  New  York. 

not  accrue  at  all  until  there  is  a  party  who  may  bring  and 
maintain  an  action.  The  counsel  for  the  defendant  insists 
that  the  title  to  the  real  estate  vested  in  Jennings  as  trustee, 
upon  the  death  of  the  testator,  under  the  will,  notwithstand- 
ing his  renunciation  as  executor. 

But  he  renounced  and  refused  to  accept  the  trust,  also,  and 
the  estate  never  vested  in  him.  He  could  not  be  compelled 
to  take  the  title  against  his  will.  (Towson  v.  Tickell,  3  B. 
&  Aid.,  31 ;  1  Cruise's  Dig.,  433,  Gred.  ed. ;  Depeyster  v. 
Clendenning,  8  Paige,  295 ;  Burritt  v.  Silliman,  13  N.  Y., 
295  ;  Beekman  v.  Bonser,  23  id.,  305 ;  McCosker  v.  Brady, 
1  Barb.  Ch.,  329  ;  In  the  Matter  of  George  W.  Robinson,  37 
N.  Y.,  261.) 

In  such  a  case  the  execution  of  the  trust  devolves  upon 
the  Supreme  Court,  and  it  is  its  duty  to  appoint  a  trustee  to 
execute  the  trust.  Until  a  trustee  is  appointed  in  such  case, 
there  is  no  person  to  bring  an  action,  and  no  right  of  action 
has  accrued.  Even  if  the  title  to  the  land  devised  in  trust 
vests  nominally  in  the  renouncing  trustee,  in  order  to  pre- 
vent a  failure  of  the  trust,  still  the  execution  of  the  trust  in 
that  case  devolves  upon  the  court,  and  no  right  of  action 
could  accrue  to  the  nominal  trustee  who  had  refused  to 
accept  the  trust.  (King  v.  Donnelly,  5  Paige,  46.) 

The  plaintiff  did  not  become  the  trustee  under  the  will, 
by  virtue  of  her  appointment  as  administrator  with  the  will 
annexed,  on  the  llth  of  March,  1869.  That  appointment 
gave  her  no  title  to  the  trust  property,  nor  did  it  clothe  her 
with  the  trust  power  given  by  the  will.  Th^  execution  of 
the  trust  had  then  devolved  upon  this  court,  and  it  had  become, 
by  law,  vested  with  all  the  trust  powers  which,  the  will  had 
conferred. 

These  powers  could  not  be  taken  away  and  conferred  upon 
another  by  the  surrogate,  by  any  appointment  he  could 
make.  The  court  in  which  the  powers  had  been  cast  and 
where  it  resided  could  alone  clothe  an  appointee  with  the 
necessary  power  to  execute  and  carry  out  the  trusts. 

An  administrator  with  the  will  annexed  has   no  power 


1872.]  OF  THE  STATE  OF  NEW  YORK. 299 

Van  Slyck  v.  Snell. 

to  sell  and  dispose  of  the  real  estate  granted  by  a  will  and 
divide  the  proceeds  as  by  the  will  directed,  nor  to  execute  a 
power  in  trust  relative  to  real  estate,  given  to  the  executors 
by  the  will.  (Conklin  v.  Edgerton,  adinr.,  21  "Wend.,  430, 
affirmed  by  Court  of  Errors,  25  id.,  224 ;  Dominick  v.  Michael, 
4  Sand.,  374  ;  Eoonee  v.  Phillips,  27  K  T.,  357,  363.)  There 
was,  therefore,  no  person  who  could  prosecute  an  action  to 
recover  this  money  until  the  28th  of  December,  1869,  when 
the  plaintiff  was  appointed  trustee  by  this  court  and  accepted 
the  trust,  and  no  right  of  action  had  before  that  time  accrued 
against  the  defendant.  As  was  said  by  BEST,  C.  J.,  in  Doug- 
lass v.  Forrest  (supra),  a  "  cause  of  action  is  the  right  to 
prosecute  an  action  with  effect,  and  no  one  has  a  cause  of 
action  until  there  is  somebody  he  can  sue."  And  in  Murray  v. 
East  India  Co.  (supra),  ABBOTT,  C.  J.,  says,  "  we  think  it 
cannot  be  said  that  a  cause  of  action  exists,  unless  there  be 
also  a  person  in  existence  capable  of  suing."  The  statute, 
therefore,  did  not  begin  to  run  until  the  appointment  of  the 
plaintiff  as  trustee  and  is  no  bar. 

The  judgment  must  therefore  be  affirmed. 

Judgment  affirmed. 


JACOB  VAN  SLYCK,  Appellant,  v.  JACOB  SNELL  and  HENBY 
SNELL,  Respondents. 


(GENERAL  TERM,  FOURTH  DEPARTMENT,  JraE,  1872.) 

A  joint  judgment  against  several  in  an  action  of  lort  may,  on  appeal,  be 
reversed  as  to  one  or  more  of  the  defendants  and  affirmed  as  to  the 
others. 

Plaintiff  and  defendant  occupied  adjoining  lands.  Plaintiff  removed  a 
portion  of  the  line  fence  between  them  and  notified  defendant  that  he 
had  done  so,  and  to  remove  his  cattle,  which  defendant  did  not  do,  but 
shortly  afterward  removed  the  remainder  of  the  fence.  Held,  that 
defendant  was  liable  for  damage  done  to  plaintiff's  field  by  the  cattle, 
after  the  entire  fence  between  them  had  been  removed. 


300  CASES  IN  THE  SUPREME  COURT          [June, 

Van  Slyck  v.  Snell. 

APPEAL  from  the  judgment  of  a  County  Court  reversing 
the  judgment  of  a  Justice's  Court.  The  facts  sufficiently 
appear  in  the  opinion. 

J.  A.  &  A.  B.  Steele,  for  the  appellants. 

Link  &  De  Camp,  for  the  respondent. 

Present — MULLIN,  P.  J.;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  action  was  trespass  for 
defendants'  cattle  breaking  and  entering  the  plaintiff's  close, 
eating  and  destroying  the  grass,  and  trampling  upon  and 
injuring  the  soil  of  a  certain  meadow.  The  plaintiff  recov- 
ered judgment  in  the  Justice's  Court  where  the  action  was 
brought,  which  was  reversed  on  appeal  by  the  County  Court. 

The  judgment  was  a  joint  judgment  against  both  defend- 
ants, and  the  reversal  was  placed  upon  the  ground  that  no 
cause  of  action  was  made  out  by  the  evidence  in  the  Justice's 
Court  against  Jacob  Suell,  one  of  the  defendants,  and  that  a 
judgment  against  both  was,  therefore,  erroneous,  not  only  as 
to  him,  but  as  to  his  co-defendant  also,  and  that  the  entire 
judgment  must,  as  matter  of  law,  be  reversed  for  that  reason. 
This  decision  is  in  accordance  with  the  decision  in  the  case  of 
Farrel  v.  Calkins  (10  Barb.,  348),  decided  in  1851,  in  the 
sixth  judicial  district,  and  was  based  upon  it. 

That  decision  does  not  appear  to  have  been  expressly  over- 
ruled, though  its  correctness  has  been  questioned  in  the  case 
of  Gerard  v.  Stagg  (10  How.  Pr.  R.,  369),  in  the  New  York 
Common  Pleas,  and  in  the  Supreme  Court  by  HOGEBOOM,  J., 
in  the  third  judicial  district,  in  the  case  of  Field  v.  Mould 
(15  Abb.,  6,  11).  A  contrary  opinion  was  also  expressed  in 
the  eighth  district  by  MARVIN,  J.,  in  Kasson  v.  Mills 
-  (8  How.  Pr.  R.,  377,  379).  See  also  note  to  case  of  Story 
v.  The  New  York  &  Harlem  R.  E.  Co.  (6  N.  Y.,  86),  in 
which  the  reporter  seeks  to  show  that  in  a  judgment  against 
several  in  an  action  of  tort,  such  judgment  may  on  appeal  be 


1872.]  OF  THE  STATE  OF  NEW  YORK.  301 

Van  Slyck  v.  Snell. 

reversed  as  to  one  or  more  of  the  defendants  and  affirmed  as 
to  the  others.  In  the  reporter's  note  above  referred  to,  the 
case  of  Campbell  v.  Perkins  (afterward  reported  in  8  N. 
T.,  430)  is  cited,  where  there  was  a  joint  judgment  in  favor 
of  several  defendants,  which  was  affirmed  by  the  General 
Term  of  the  Supreme  Court,  but  which  in  the  Court  of 
Appeals  was  affirmed  as  to  one  of  the  defendants,  but  reversed 
and  new  trial  ordered  as  to  the  others.  That  was  a  case 
where  several  defendants  were  sued  as  common  carriers,  and 
they  all  had  judgment  on  the  ground  that  there  was  no  lia- 
bility on  their  part  to  the  plaintiff.  But  one  of  the  defend- 
ants had  established  in  the  court  below  a  discharge  under  the 
bankrupt  law. 

The  Code,  §  366,  is  very  explicit  upon  this  point,  and  seems 
to  leave  no  room  for  doubt  or  hesitation.  "  In  giving  judg- 
ment, the  court  may  affirm  or  reverse  the  judgment  of  the 
court  below,  in  whole  or  in  part,  and  as  to  any  or  all  the  par- 
ties, and  for  errors  of  law  or  fact."  It  is  difficult  if  not 
impossible  to  see  how  any  question  could  ever  have  arisen 
under  this  clear  and  unqualified  provision  of  the  Code,  in 
respect  to  the  right  and  power  of  the  court,  on  appeal,  to 
reverse  a  judgment  as  to  one  defendant  and  affirm  it  as  to 
the  other,  especially  in  an  action  of  tort,  where  a  cause  of 
action  had  been  made  out  against  one,  and  not  against  the 
other.  In  such  a  case  the  plaintiff  is  entitled  to  a  several 
judgment  against  the  one,  but  not  against  the  other. 

The  error  is  in  the  joint  judgment.  But  the  party  against 
whom  a  good  cause  for  judgment  has  been  established  has 
no  just  reason  to  complain.  It  is  the  innocent  party  alone 
who  has  been  injured,  in  contemplation  of  the  law,  and  this 
injury  may  be  redressed  by  a  reversal  of  the  judgment  as  to 
him  in  the  appellate  court,  leaving  it  to  stand  as  to  the  other. 
This  course  would  be  altogether  in  furtherance  of  justice,  and 
ought  to  be  followed,  if  the  power  is  clear,  for  the  reason  that 
it  saves  the  trouble  and  expense  of  a  new  trial  and  puts  an 
end  to  further  litigation.  This  court  may  render  the  judg 


802  CASES  IN  THE  SUPREME  COURT         [June, 

Van  §lyck  v.  Snell. 

ment  which  the  County  Court  should  have  rendered.    (Brow- 
ndl  v.  Winnie,  29  N..Y.,  400.) 

The  case  of  Farrell  v.  Calkins  (supra)  was  like  the  case  at 
bar,  an  action  of  tort,  against  several  defendants,  but  the  decision 
in  that  case  is  not  only  in  direct  opposition  to  the  provision 
of  the  Code,  but  is  contrary  to  the  decision  of  the  Court  of 
Appeals  in  Campbell  v.  Perkins  (supra),  and  was,  as  we 
think,  clearly  erroneous,  and  ought  not  to  be  followed. 

The  County  Court  was  clearly  right  in  holding  that  no 
cause  of  action  was  shown  upon  the  trial  against  the  defend- 
ant, Jacob  Suell.  He  was  the  general  owner  of  a  part  of  the 
cattle  which  committed  the  trespasses,  but  had  rented  them 
with  his  farm  to  the  other  defendant,  who  had  the  sole  cus 
tody  and  control  over  them  when  the  injury  was  done.  Tho 
latter  was  alone  liable,  under  the  circumstances,  for  the  injury. 
The  County  Court  also  properly  held  that  the  removal  by  the 
plaintiff  of  his  part  of  the  line  fences  did  not  affect  his  right 
of  action.  It  appears  from  the  evidence  that  the  line  fence 
between  the  two  farms  was  one  which  both  parties  had  been 
in  the  habit  of  removing  late  in  the  fall,  to  prevent  its  being 
carried  away  by  the  spring  floods,  and  replacing  again  in  the 
spring  after  the  high  water  was  over.  The  plaintiff,  before 
the  commission  of  the  injuries,  removed  his  portion  of  the 
fence  first,  and  gave  notice  to  the  defendant  Henry  to  take 
out  his  cattle.  The  defendant  Henry,  within  a  very  few  days 
afterward,  removed  his  portion  of  the  line  fence  also,  but  did 
not  take  his  cattle  out  of  the  field  separated  by  the  line  fence 
from  plaintiff 's  meadow.  There  being  no  line  fence  kept  up 
by  either  party,  the  defendant  Henry  was  liable  for  the  injury 
done  by  his  cattle  upon  the  plaintiff's  land. 

The  judgment  of  the  County  Court  must,  therefore,  as  to 
the  defendant  Jacob  Suell,  be  affirmed ;  and  as  to  the  defend- 
ant Henry  Suell,  the  judgment  of  the  County  Court  must  be 
reversed  and  that  of  the  justice  affirmed. 

Ordered  accordingly. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  303 

Pardee  v.  Leitch. 


CHAKLES  PARDEE  v.  DAVID  K.  LEITCH  ;  JOHN  PACKWOOD  v. 
SAME  DEFENDANT. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  Jtrcre:,  1872.) 

An  attachment  upon  shares  of  bank  stock,  and  other  property  incapable  of 
manual  delivery,  can  only  be  executed  where  the  property  is  held  by  a 
corporation  or  association  by  leaving  a  certified  copy  of  the  warrant 
with  the  officers  or  managing  agent  of  such  association  or  corporation, 
mentioned  in  section  235  of  the  Code. 

It  is  not  a  good  execution  of  an  attachment,  under  that  section,  if  the  war- 
rant is  left  with  a  person  not  an  officer  or  managing  agent  of  the  associa- 
tion, who  forwards  it  by  mail  to  such  an  agent,  by  whom  it  is  received. 

It  is  ground  for  setting  aside  a  sale  of  bank  shares,  under  execution  issued 
upon  a  judgment  in  an  action,  that  the  shares  have  not  been  attached  at 
the  commencement  of  the  action. 

The  proper  and  only  remedy  of  the  judgment  debtor,  whose  shares  have 
been  unlawfully  sold  under  the  execution,  is  by  motion  to  set  aside  the 
sale. 

Where  an  assignee  in  bankruptcy  of  such  judgment  debtor  has  been 
appointed,  he  represents  not  only  the  debtor  but  also  his  creditors,  and 
therefore  is  the  proper  person  to  make  such  motion. 

One  who  has,  by  assignment  from  the  purchaser  at  the  sale,  become  vested 
with  the  interest  of  such  purchaser  in  the  property  sold,  is  a  proper  and 
necessary  party  to  such  motion. 

MOTIONS  to  set  aside  a  sale  under  execution.  The  grounds 
of  such  motions,  and  the  questions  raised  and  decided,  suffi- 
ciently appear  by  the  opinion. 

William  J.  Wallace,  for  the  appellants. 
Jliscock,  Gifford  &  Doheny,  for  the  respondents. 
Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  J  J. 

By  the  Court — JOHNSON,  J.  It  is  clear  enough  that 
Doheny,  the  defendant's  assignee  in  bankruptcy,  is  a  proper 
party  to  make  these  motions  to  set  aside  the  sales  under  the 
executions  issued  upon  the  judgments  in  the  above-entitled 
actions.  The  ground  of  the  motions  is  that  the  sales  were 
irregular  and  void,  being  sales  of  property  not  liable  to  be 


804  CASES  IN  THE  SUPREME  COURT         [June, 

Pardee  v.  Leitch. 

sold  on  execution,  unless  it  had  been  first  levied  upon  by  an 
attachment  at  the  commencement  of  the  action,  and  which 
had  not  been  so  levied  upon.  The  judgment  debtor  could 
have  made  the  motion,  but  for  his  discharge  in  bankruptcy, 
and  his  assignee  in  bankruptcy,  who  represents  not  only  the 
judgment  debtor  but  all  his  creditors,  is  the  only  person  by 
whom  it  cun  properly  be  made.  (Gould  v.  Mortimer,  26 
How.  Pr.  R.,  167.)  It  is  equally  clear  that  Earll  was  a  pro- 
per party  moved  against  in  the  motion.  The  plaintiffs  in  the 
judgments  purchased  at  the  sheriff's  sale,  and  Earll  is  the 
assignee  or  purchaser  of  the  rights  thus  acquired  by  them. 
He  takes  the  rights  they  acquired  by  their  purchase,  and  can 
have  no  other  or  greater.  It  has  always  been  held  that  a 
person  not  a  party  to  a  judgment,  by  appearing  and  bidding 
and  making  a  purchase  at  a  judicial  sale,  became  so  far  a 
party  to  the  action  as  to  make  him  a  proper  and  necessary 
party  to  a  motion  to  set  aside  such  sale.  For  the  same  reason 
an  assignee  of  a  party  to  the  judgment,  who  purchases  at  the 
sale,  is  a  proper  and  necessary  party  to  such  a  motion.  The 
proceeding  by  motion,  in  a  case  like  this,  to  set  aside  the  sale, 
is  the  proper  form  for  obtaining  the  remedy.  Indeed,  it  is 
the  only  remedy  which  the  law  allows  to  a  party  to  the  action, 
or  to  the  representative  of  his  rights  and  interests  in  the 
transaction. 

The  question  then  arises  whether  the  sale  by  the  sheriff 
of  the  property  in  question  was  not  irregular  and  void ;  or 
voidable  at  the  election  of  the  defendant  in  the  judgment  or 
his  assignee  in  bankruptcy.  The  property  which  the  sheriff 
undertook  to  sell,  and  the  plaintiffs  in  the  judgment  under- 
took to  purchase  at  the  sale,  was  the  right  and  interest  of  the 
defendant  in  the  judgments,  in  107  shares  of  the  stock  of 
Tompkins  County  Bank,  and  seventy-three  shares  of  the 
stock  of  the  Bank  of  Syracuse,  of  the  par  value  of  $100  per 
share. 

This  stock  had  been  transferred  to  the  American  Express 
Company,  and  stood  in  its  name  on  the  books  of  the  respect- 
ive banks.  Before  the  commencement  of  these  actions,  an 


1872.]  OF  THE  STATE  OF  NEW  YORK.  3()f> 


Pardee  v.  Leitch. 


action  had  been  commenced  by  the  defendant  and  others 
against  the  American  Express  Company  to  recover  this  stock, 
and  a  judgment  had  been  rendered  in  their  favor,  by  which  it 
was  adjudged  and  determined  that  they  were  the  owners  of 
the  stock,  and  that  the  express  company  had  no  title  thereto. 
The  express  company  had  appealed  from  this  judgment  to 
the  General  Term  of  the  Supreme  Court,  where  the  judgment 
was  affirmed ;  and  from  the  latter  decision  to  the  Court  of 
Appeals,  where  the  appeal  was  pending  when  these  actions 
were  commenced.  The  property  and  interests  of  the  defend- 
ant were  therefore  of  a  character  which  could  not  be  sold  on 
execution,  unless  it  had  been  previously  levied  upon,  and  was 
held  by  the  sheriff  under  the  attachments  issued  in  the 
actions.  When  the  actions  were  commenced  the  defendant 
was  out  of  the  State,  and  they  were  commenced  by  attach- 
ment and  summons.  No  copy  of  the  attachments  was  served 
upon  any  officer  of  either  of  the  banks,  nor  upon  any  person 
who  was,  or  ever  had  been,  either  president  or  other  head  of 
the  American  Express  Company,  or  secretary,  or  cashier,  or 
managing  agent  thereof. 

The  execution  of  the  attachment  by  the  sheriff  was  by  ser- 
vice of  a  certified  copy  of  the  attachment,  with  a  notice  of 
the  defendant's  interest  in  the  bank  stock  upon  one  Alfred 
Higgins  as  the  agent  of  the  American  Express  Company,  and 
upon  the  attorneys  of  the  defendant  in  the  action  against  the 
express  company. 

Higgins  was  never  an  officer  or  managing  agent  of  the 
express  company.  He  had  once  been  a  servant  or  employe 
of  that  company  ;  and  even  that  connection  had  ceased  some 
two  years  before  the  commencement  of  these  actions.  The 
attachment  had,  therefore,  never  been  executed  upon,-  or  in 
respect  to,  this  property ;  and  the  sheriff,  by  virtue  thereof, 
had  never  acquired  any  interest  in  it  or  control  over  it  what- 
ever. The  service  of  the  copy  and  notice  upon  the  defend- 
ant's attorneys  in  the  other  action  was  a  mere  nullity.  The 
Code  (§  235)  directs  how  the  attachment  shall  be  executed  in 
regard  to  property  of  the  description  of  that  in  question,  and 

LANSING — VOL.  VI.  39 


306  CASES  IN  THE  SUPREME  COURT          [June, 

Pierce  v.  Wright. 

upon  whom,  in  such  a  case,  service  shall  be  made ;  and  it  can 
be  lawfully  executed  in  no  other  way.  Until  it  is  executed 
in  the  manner  there  prescribed,  the  property  is  not  in  the 
custody  of  the  law  or  its  officer,  and  no  lien  is  created  in 
favor  of  any  one  by  reason  of  its  having  been  issued. 

Even  if  Fargo,  under  the  circumstances,  could  be  properly 
regarded  as  the  managing  agent  of  the  American  Express 
Company,  the  act  of  Higgins,  in  sending  the  copy  of  the 
attachment  and  notice  served  upon  him  by  letter  to  Fargo, 
was  no  execution  of  the  attachment  for  any  purpose.  It  was 
not  an  official  act,  any  more  than  any  other  piece  of  informa- 
tion communicated  by  one  unofficial  person  to  another. 

Whether,  therefore,  the  defendant'  s  right  or  title,  at  the 
time  the  attachments  were  issued,  had  vested  in  the  bank 
stock,  or  was  inchoate,  and  vested  in  the  judgment  against 
the  express  company,  the  attachments  were  never  executed 
by  the  sheriff  upon  the  property,  in  either  form,  and  no  lien 
or  claim  was  ever  fastened  upon  it. 

The  sale,  under  the  executions  issued  upon  the  judgments, 
was,  therefore,  irregular  and  wholly  void,  and  conferred  no 
right  or  title  upon  the  purchasers,  or  their  assignees,  and  was 
properly  set  aside. 

The  order  must,  therefore,  be  affirmed,  with  ten  dollars 
costs  of  appeal. 

Order  affirmed. 


SAMUEL  PIERCE,  Respondent,  v.  CHARLES  I.  WEIGHT  et  al., 

Appellant.' 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

Where  the  authority  of  the  defendants  in  an  action  to  restrain  the  issue  of 
town  railroad  bonds,  as  a  cloud  upon  title  to  real  estate  was  set  forth  by 
an  allegation  that  they  were  or  claimed  to  be  commissioners  for  the  issue  of 
the  bonds,  but  that  the  plaintiff  was  ignorant  of  the  truth  of  their  claim. 
Held,  that  a  temporary  injunction  was  erroneously  granted. 

Where  the  statute  makes  affidavits  and  consents  of  tax-payers  acknow- 
ledged and  filed  as  required  evidence  of  the  facts  therein  contained,  such 
facts  may  not  be  attacked  collaterally. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  307 

Pierce  t>.  Wright. 

The  remedy  in  case  of  inaccuracy  of  the  affidavits  and  consents  is  by  pro- 
ceeding to  correct  the  record  or  set  it  aside. 

The  provision  requiring  an  affidavit  of  consents  of  a  proportion  of  per- 
sons, &c.,  upon  the  last  assessment  roll  is  satisfied,  if  the  affidavit  states 
that  the  requisite  number  of  consents  have  been  obtained  according  to 
the  rolls  of  the  last  two  years,  consents  having  been  obtained  in  both 
years. 

The  act  of  1871  (chap.  127)  was,  it  seems,  designed  to  extend  the  time  for 
procuring  assents  and  to  enable  proceedings  already  begun  to  be  com- 
pleted. 

APPEAL  from  an  order  continuing  a  temporary  injunction 
issued  upon  a  complaint.  The  action  was  brought  to  have 
the  defendants,  who  are  the  commissioners  of  the  town 
of  Webster,  in  the  county  of  Monroe,  perpetually  enjoined 
and  restrained  from  issuing  the  bonds  of  the  town  for  the 
purpose  of  aiding  in  the  construction  of  the  railroad  of  "  The 
Lake  Ontario  Shore  Railroad  Company."  The  facts  consti- 
tuting the  alleged  cause  of  action,  as  stated  in  the  complaint, 
sufficiently  appear  in  the  opinion.  A  temporary  injunction 
was  granted,  which  was  continued  at  Special  Term,  and  from 
the  order  continuing  the  injunction  this  appeal  was  brought 
to  the  General  Term. 

J,  N.  Pomeroy,  for  the  plaintiff- 

J.  C.  Cochrane,  for  the  defendants. 

Present — MULLEN  P.  J". ;  JOHNSON  and  TALCOTT,  JJ. 

ft 

By  the  Court — JOHNSON,  J.  Assuming,  for  the  purpose 
of  reviewing  the  question  presented  by  this  appeal,  that  the 
plaintiff,  as  the  owner  of  real  estate  and  a  tax-payer  of  the 
town  of  Webster,  might  have  a  standing  in  court  to  maintain 
an  action  of  this  character  upon  a  proper  and  sufficient  com- 
plaint (a  question  which  we  do  not  propose  now  to  decide, 
and  in  regard  to  which  we  express  no  opinion),  it  is  clear  we 
think  that  upon  this  complaint  the  action,  and  consequently 
the  injunction,  cannot  be  maintained.  The  remedy  sought 
by  the  action  is  preventive  only.  The  complaint  asks  that 


308  CASES  IN  THE  SUPREME  COURT      [June, 

Pierce  v.  Wright. 

the  defendants,  Wright,  Billings  and  Jennings,  be  enjoined 
and  perpetually  restrained  from  issuing  bonds  for,  and  in 
behalf  of,  the  town  of  Webster,  in  Monroe  county,  to  aid  in 
the  construction  of  the  railroad  of  the  "  Lake  Ontario  Shore 
Railroad  Company,"  on  the  ground  that  such  bonds,  if  issued, 
will  be  a  lien  and  incumbrance  upon  the  plaintifl's  property 
in  that  town,  and  a  cloud  upon  his  title,  and  inflict  upon  him 
a  perpetual  and  irreparable  injury.  This  is  the  head  of  equi 
table  jurisdiction,  under  which  the  relief  is  sought.  What 
the  plaintiff  attempts  to  show  by  the  facts  stated  in  his  com- 
plaint, and  insists  that  he  has  shown,  is,  that  the  defendants 
have  no  lawful  right  or  authority  to  issue  the  bonds  for  and 
in  behalf  of  the  town,  which  they  are  threatening,  and  claim- 
ing the  right,  to  issue. 

The  first  difficulty  is  that  the  complaint  does  not  show 
that  these  three  individuals  are  officers  of  the  town,  having 
any  authority  by  legal  appointment,  or  color  of  appointment, 
to  act  as  commissioners  for  the  purpose  of  bonding  the  town. 
What  the  complaint  states  on  this  subject,  is,  that  they  "  are 
or  claim  to  be"  such  commmissioners,  "  but  whether  they 
were  duly  appointed  as  such  commissioners  this  plaintiff  is 
not  informed  and  is  not  able  to  say." 

Instead  of  stating  that  they  are  commissioners  duly 
appointed  and  authorized  to  act  and  issue  such  bonds  in  a 
proper  case  under  the  statute,  it  ignores  the  fact  altogether, 
and  does  not  even  allege  that  they  are  commissioners  de  facto, 
acting  under  color  of  any  appointment. 

All  the  fact  that  is-  stated,  therefore,  on  this  subject,  is  that 
they  either  are  or  claim  to  be  commissioners,  with  an  allega- 
tion of  ignorance  as  to  the  truth  of  the  claim.  This  is  to  be 
construed  most  strongly  against  the  pleader,  and  it  amounts 
but  to  this :  Here  are  certain  persons  who  say  they  are  com- 
missioners of  the  town,  but  whether  they  are  or  not  we  neither 
affirm  nor  deny.  It  does  not  appear,  therefore,  from  any  fact 
stated  in  the  complaint,  that  there  is  any  foundation  for  their 
claim,  and  the  bonds,  should  these  defendants  issue  them, 
would  be  utterly  void  and  in  no  respect  binding  upon  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  3Q9 

Pierce  o.  Wright 

town,  or  an  apparent  lien  or  cloud  upon  the  plaintiff 's  estate 
or  title.  An  attempt,  or  a  threat,  by  an  individual  or  indi- 
viduals, to  do  an  act,  which,  when  done,  would  be  a  nullity, 
neither  binding  upon  nor  injurious  to  any  one,  according  to 
the  allegations  of  fact  in  a  complaint,  or,  for  aught  which 
appears  there,  lays  no  foundation  whatever  for  an  action  to 
restrain  the  commission  of  such  act.  But  there  is  a  still  more 
serious  difficulty.  The  plaintiff  alleges  and  charges  in  the 
complaint  that  although  it  appears  by  the  consents  filed,  and 
the  affidavits  of  the  assessors,  that  consent  has  been  obtained 
of  persons  owning  more  than  one-half  of  the  taxable  property 
of  said  town,  and  of  more  than  one-half  of  the  tax-payers,  as 
appears  by  the  last  assessment  roll,  yet,  in  fact,  some  of  the 
persons  signing  the  consents  were  not  tax-payers  of  the  town, 
and  did  not  own  the  property  assessed  to  them,  and  that  the 
owners  have  never  given  their  consents ;  and  that,  deducting 
the  names  of  such  persons  so  signing  consents,  the  remaining 
consents  would  represent  much  less  than  one-half  the  taxable 
property  of  the  town ;  and  also,  that  several  persons  signed 
consents  who  did  not  own  all  the  property  assessed  to  them 
on  the  assessment  roll,  and  only  a  portion  thereof,  and  that 
one-half  of  the  tax-payers  and  property-owners  of  the  town 
have  not  given  the  necessary  consents  to  the  bonding  of  said 
town. 

This  raises  the  question  whether  every  or  any  individual 
tax-payer  in  the  town  may  challenge  and  assail  the  facts  as 
they  appear  from  the  record,  which  the  statute  makes  evi- 
dence, by  action,  in  this  collateral  way.  The  statute  provides 
how  the  facts  necessary  to  authorize  the  issuing  the  bonds  of 
the  towns  shall  be  ascertained  and  determined.  Consent 
must  be  obtained  in  writing  and  proved  by  a  subscribing  wit- 
ness in  the  form  and  manner  prescribed,  or  acknowledged  as 
deeds  are  required  to  be  acknowledged  for  the  conveyance  of 
real  estate, "  of  persons  owning  more  than  one-half  of  the 
taxable  property  assessed  and  appearing  upon  the  last  assess- 
ment roll  of  such  town,  and  a  majority  of  tax-payers,  as 
appears  by  such  assessment  rolls  respectively/'  These  facts, 


310  CASES  IN  THE  SUPREME  COURT          [June, 

Pierce  v.  Wright. 

when  ascertained,  are  to  be  proved  by  the  affidavits  of  the 
assessors  of  the  town,  or  a  majority  of  them,  and  it  is  made 
their  duty  to  make  such  affidavit.  The  consents  and  the 
affidavit,  with  a  copy  of  the  assessment  roll,  are  then  to  be 
filed  in  the  office  of  the  clerk  of  the  county,  and  in  the  office 
of  the  clerk  of  the  town,  "  and  the  same,  or  a  certified  cop\ 
thereof,  shall  be  evidence  of  the  facts  therein  contained  and 
certified  in  any  court  of  the  State,  and  before  any  judge  or 
justice  thereof."  The  statute  "makes  this  evidence  of  the 
jurisdictional  and  all  other  facts.  It  is  in  the  nature  of  a 
record  and  imports  absolute  verity,  so  long  as  it  remains  as  a 
record  upon  the  files  of  the  county  and  town  clerk's  offices. 
The  object  of  this  action  is  not  to  correct  the  record  so  as  to 
make  it  conform  to  what  the  plaintiff  claims  the  facts  to  be, 
but  to  prevent  the  commissioners  from  acting  and  performing 
the  duty  imposed  upon  them  by  law,  upon  what  the  statute 
declares  shall  be  evidence  in  all  places  throughout  the 
State. 

The  law  makes  it  evidence  of  the  facts  "  therein  contained 
and  certified,"  before  this  court  and  every  other  in  the  State, 
and  for  all  purposes.  The  statute  does  not  make  \tprima 
facie  evidence  merely,  but  evidence  absolutely  and  unquali- 
fiedly. The  issue  which  the  plaintiif  in  his  complaint  ten- 
ders is  that  this  record  is  a  false  witness,  which  does  not 
certify  the  truth,  and  should  not  therefore  be  regarded  and 
acted  upon,  or  held  as  evidence  of  the  facts,  as  the  statute 
ordains. 

In  other  words,  we  are  called  upon  to  say  that  what  the 
law  makes  evidence  is  no  evidence ;  and  that  public  officers 
shall  not  act  upon  it,  and  perform  their  duties  in  accordance 
with  it,  as  the  law  requires. 

It  is  quite  obvious  that  this  cannot  be  done  in  this  way.  It 
would  be  quite  intolerable  to  allow  every  tax-payer  in  the 
town  to  drag  public  officers  into  court  in  this  way,  and  put 
them  to  the  expense  and  trouble  of  defending  the  public 
records,  and  proving  them  to  be  true,  should  evidence  be 
allowed  to  be  given  to  the  contrary.  The  plaintiff  has 


1S72.]  OF  THE  STATE  OF  NEW  YORK.  311 

Pierce  v.  Wright 

plainly  mistaken  his  remedy.  Public  records  cannot  be 
assailed  and  controverted  in  this  collateral  manner. 

His  only  remedy  was  by  a  direct  proceeding  to  correct  the 
record,  if  it  was  in  any  respect  incorrect,  and  reform  the 
character  of  the  statutory  witness,  so  that  it  should  speak 
"  the  truth,  the  whole  truth,  and  nothing  but  the  truth ;"  or 
to  set  it  aside,  and  get  rid  of  it  altogether.  This  principle 
was  established  in  the  case  of  The  People  v.  Zeyst  (23  N.  Y., 
140).  It  was  there  held  that  it  could  not  be  proved  by  parol, 
in  an  action,  that  an  official  record  was  not  true. 

Starkie,  in  his  work  on  Evidence,  thus  lays  down  the  rule : 
"  When  written  instruments  are  appointed  by  the  immediate 
authority  of  the  law,  or  by  the  compact  of  the  parties,  to  be 
the  permanent  repositories  and  memorials  of  truth,  it  is  a 
matter  both  of  principle  and  of  policy  to  exclude  any  inferior 
evidence  from  being  used,  either  as  a  substitute  for  such 
instruments,  or  to  alter  or  contradict  them."  (2  Stark.,  544, 
5th  Am.  ed.)  Here  the  statute  has  made  this  record  "  The 
repository  and  memorial  of  the  truth,"  and  the  witness 
thereof.  This  principle  is  entirely  consistent  with  the  ruling 
in  the  case  of  Starin  v.  The  Town  of  Genoa  (23  N.  Y.,439). 
In  that  case  it  was  held  that  parol  evidence  was  competent  to 
show  that  the  written  assent  of  two-thirds  of  the  tax-payers 
of  the  town  had  not  been  obtained,  and  thus  contradict  the 
certificate  of  the  commissioners,  expressly  upon  the  ground 
that  the  statute  in  that  case  had  not  made  the  certificate  evi- 
dence. 

But  the  contrary  of  that  rule,  even  in  the  class  of  cases" 
arising  under  that  statute,  has  been  held  in  the  United  States 
Circuit  Court.  Whether  the  plaintiff's  remedy  was  by  a 
common-law  certiorari,  to  bring  up  the  record  and  proceed- 
ings for  review,  or  by  some  other  process  to  correct  or  get  rid 
of  the  record,  it  is  unnecessary  now  to  decide.  It  is  enough 
that  it  cannot  be  controverted  or  its  verity  challenged  or  put 
in  issue  in  this  way,  if,  upon  its  face,  it  is  fair,  and  in  compli- 
ance with  the  statute.  This  view  is  in  accordance  with  the 
decision  of  the  Court  of  Appeals  in  the  case  of  ffowland  v, 


CASES  IN  THE  SUPREME  COURT         [June, 
Pierce  v.  "Wright. 

Mdredge  (43  N.  Y.,  457).  The  ground  of  the  decision  in 
that  case  was  that  the  examination  of  the  consents,  and  the 
assessment  roll,  for  the  purpose  of  ascertaining  and  determin- 
ing whether  a  majority  of  the  tax-payers  had  consented  to 
the  bonding  of  the  town,  was  in  the  nature  of  a  judicial  pro- 
ceeding, and  that  the  affidavit  embodying  the  determination 
was  conclusive  evidence  of  the  fact  so  ascertained  and  deter- 
mined. 

The  principle  is,  that  the  verity  of  a  record,  or  document, 
or  other  matter  which  the  law  makes  evidence,  is  not  an 
issuable  fact,  constituting  a  cause  of  action,  in  a  collateral 
action,  unless  such  record,  document  or  other  matter  is  by 
law  made  mereprima  facie  evidence,  which  is  not  the  case 
under  the  statute  in  question.  The  statute  makes  the  con- 
sents, copy  of  the  assessment  roll,  and  affidavit,  when  filed, 
evidence,  and  gives  no  right  of  appeal  to  any  other  body  or 
tribunal.  No  one  would  think  of  bringing  and  attempting 
to  maintain  an  action  to  prevent  the  execution  of  a  judg- 
ment or  decree,  on  the  ground  that  the  verdict  or  finding  was 
against  the  weight  of  evidence,  and  contrary  to  the  real  facts 
existing  and  involved  in  the  issue.  And  yet  this  is  precisely 
analogous  in  principle  to  such  an  action. 

The  complaint  also  alleges  that  the  affidavit  of  tne 
assessors  shows  that  the  requisite  number  of  consents  have 
been  obtained  as  appears  by  the  assessment  rolls  of  1870  and 
of  1871,  and  this,  it  is  claimed,  is  not  in  accordance  with  the 
statute.  The  point  is  that  the  last  assessment  roll  in  the 
year  in  which  any  consents  were  obtained  must  govern,  and 
could  alone  be  referred  to  in  making  up  the  affidavit  for 
record.  But  we  are  of  the  opinion,  in  a  case  situated  as  this 
was,  that  both  assessment  rolls  may  properly  be  referred  to. 
A  portion  of  the  consents  were,  as  appears  by  the  complaint, 
obtained  in  1870,  and  the  residue  in  1871,  and  the  affidavit 
shows  that  the  requisite  number  of  consents  had  been 
obtained,  as  appeared  by  both  rolls.  If  it  so  appeared  by 
both  rolls,  it  necessarily  so  appeared  by  the  last.  The  con- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  313 

Smith  v.  Smith. 

sents  obtained  before  1871,  and  in  the  year  1870,  were,  we 
think,  properly  filed  and  counted. 

The  act  of  1871,  Session  Laws  of  1871,  chapter  127, 
amending  the  act  of  1869,  under  which  the  consents  in  1870 
were  obtained,  was  evidently  designed  to  extend  the  time  for 
procuring  assents,  and  to  enable  proceedings  to  be  completed, 
which  had  already  been  begun,  but  which  had  not  been  com- 
pleted when  the  amendatory  act  was  passed.  It  is  of  no  con- 
sequence whatever  who  procured  the  consents  to  be  signed 
by  the  tax-payers.  If  their  consents  were  obtained,  and 
proved  or  acknowledged  according  to  the  statute,  as  it  is  to 
be  presumed  they  were,  that  is  sufficient. 

It  should  be  observed  that  there  is  no  allegation  in  the 
complaint  that  the  assessors  had  not  jurisdiction  to  entertain 
the  proceedings  before  them,  and  to  make  a  determination, 
nor  that  they  had  been  guilty  of  any  fraud  in  their  action  in 
the  premises. 

We  are  of  the  opinion,  therefore,  that  the  facts  stated  in 
the  complaint  do  not  constitute  a  cause  of  action  in  favor  of 
the  plaintiff  against  the  defendants,  or  either  of  them,  and 
that  the  order  continuing  the  injunction  was  erroneous  and 
should  be  reversed,  and  the  order  granting  the  injunction 
vacated,  with  ten  dollars  costs  of  the  appeal. 

Order  reversed. 


G.  HAKRISON  SMITH,  Appellant,  v.  PHEBE  SMITH,  Respondent. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

A  widow  is  entitled  to  have  set  off  to  her  as  her  dower,  by  metes  and 
bounds,  to  be  held  by  her  in  severally,  the  one-third  part  of  land  of  which 
her  husband  has  been  seized  in  fee  in  severalty,  during  coverture,  and  has 
conveyed  an  undivided  portion  to  another  person,  she  not  joining  with 
him  in  the  conveyance. 

She  is  also  entitled  to  have  set  off  to  her,  by  metes  and  bounds,  as  her 
dower  therein,  the  one-third  part  of  lands  conveyed  to  the  husband  and  a 
third  person,  as  tenants  in  common  during  coverture,  and  so  held  by  them 
at  the  time  of  the  husband's  death,  to  be  held  by  her  as.  tenant  in  common 
with  the  other  owner. 
LANSIXG — VOL.  VI.  40 


314  CASES  IN  THE  SUPREME  COURT        [June, 


Smith  v.  Smith. 


Although  the  statute  in  relation  to  proceedings  for  admeasurement  of 
dower  does  not  require  any  notice  to  be  given  of  the  meetings  of  the 
commissioners,  yet  such  notice  is  customary  and  proper,  and  should  be 
given ;  but  where  it  appears  that  a  party  interested,  who  complains  of 
the  omission  to  give  such  notice,  knew  of  such  meetings,  and  that  no 
injustice  has  been  done  him  by  the  decision, — Held,  that  the  commission- 
ers' report  should  be  confirmed,  notwithstanding  no  formal  notice  of 
then-  meetings  had  been  given. 

No  appeal  can  be  taken,  under  the  provisions  of  the  Revised  Statutes,  from 
an  order  confirming  such  a  report,  unless  the  commissioners  are  appointed 
by  the  County  Court  or  a  surrogate ;  but  an  appeal  to  the  General  Term 
from  the  order  of  the  Special  Term,  confirming  the  report  of  the  commis- 
sioners appointed  by  the  Supreme  Court  upon  petition,  may  be 'upheld 
under  the  provisions  of  chapter  270,  Laws  of  1854,  which  allows  appeals 
to  be  taken  in  any  special  proceeding  from  any  order  or  final  determina- 
tion made  at  Special  Term  to  the  General  Term. 

Such  an  appeal  does  not,  however,  stay  the  proceedings,  without  the  order 
of  the  court  or  a  judge  thereof. 

The  costs  of  an  appeal  from  the  order  confirming  the  report  in  such  pro- 
ceedings, where  the  appointment  has  been  made  by  the  Supreme  Court, 
are  not  those  given  by  the  Revised  Statutes,  but  are  regulated  by  the 
provisions  of  chapter  270,  Laws  of  1854. 

THE  facts  are  stated  with  sufficient  fullness  in  the  opinion. 

L.  J.  Dorwin,  for  the  appellant. 

M.  H.  Merwin,  for  the  respondent. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  This  is  an  appeal  from  an  order 
made  at  Special  Term,  confirming  the  report  of  commissioners 
appointed  to  admeasure  the  dower  of  the  respondent  in  cer- 
tain lands  described  in  her  petition,  of  which  her  husband 
died  seized,  or  was  seized  during  her  coverture.  The  pro- 
ceeding for  the  admeasurement  of  dower  was  by  petition  to 
this  court,  under  the  provisions  of  the  Revised  Statutes.  (2 
R.  S.,  488.)  From  the  petition  and  the  other  papers  before 
us,  it  appears  that  the  lands  in  which  the  respondent  sought 
to  have  her  dower  admeasured  consisted  of  three  several  par- 
cels. First.  A  parcel  of  about  eighty-four  acres,  of  wljich  the 
respondent's  husband  was,  during  coverture,  seized  in  fee  in 


1872.]  OF  THE  STATE  OF  NEW  YORK.  315 

Smith  v.  Smith. 

severally,  and  an  equal,  undivided  half  of  which  he  conveyed 
to  the  appellant,  by  a  conveyance  in  which  the  respondent 
did  not  join.  Second.  A  parcel  of  land  containing  about 
twenty  acres,  which  was  conveyed  to  the  appellant  and  the 
respondent's  husband  as  tenants  in  common,  and  was  held  by 
them  as  such  at  the  time  of  the  decease  of  said  husband. 
Third.  Another  parcel  consisting  of  about  two  acres,  owned 
and  held  by  the  appellant  and  the  said  husband  at  the  time 
of  his  death,  in  the  same  manner  as  the  parcel  last  above 
described.  In  respect  to  the  first  parcel,  the  commissioners 
admeasured  and  set  off  to  the  respondent,  by  metes  and 
bounds,  one-third  of  the  premises,  to  be  held  by  her  in  seve- 
ralty ;  and  in  respect  to  the  two  other  parcels,  they  admea- 
sured and  set  off,  by  metes  and  bounds,  to  the  respondent, 
one-third  of  each,  to  be  held  by  her  in  common  with  the 
appellant. 

No  complaint  is  made  that  the  admeasurement  is  in  any 
respect  unfair  or  unjust  as  respects  measure  or  quantity.  The 
complaint  in  regard  to  the  merits  is  that  the  respondent  was 
not  entitled  to  have  her  dower  admeasured  and  assigned  in 
either  parcel  by  metes  and  bounds,  inasmuch  as  the  appellant 
and  the  husband,  at  the  time  of  the  death  of  the  latter,  held 
each  and  all  of  said  parcels  as  tenants  in  common.  What- 
ever force  there  may  be  in  this  objection  in  other  respects,  it 
clearly  does  not  apply  to  the  first  parcel  of  land.  The  appel- 
lant took  a  common  interest  and  title  in  that  parcel  by  con- 
veyance from  the  respondent's  husband  during  her  coverture, 
and  subject  to  her  right  of  dower  therein.  She  had,  there- 
fore, a  clear  right  to  have  her  dower  admeasured  and  assigned 
in  that  parcel  by  metes  and  bounds  in  severally.  Without 
going  further,  our  statute  (1  R.  S.,  742,  §  16)  provides  that 
no  "  act,  deed  or  conveyance  executed  or  performed  by  the 
husband  without  the  consent  of  the  wife,  evidenced  by  her 
acknowledgment  thereof,  in  the  manner  required  by  law  to 
pass  the  estate  of  married  women,"  shall  prejudice  the 
right  of  the  wife  to  her  dower,  or  preclude  her  from  the 
recovery  thereof,  if  otherwise  entitled  thereto.  But  in  the 


316  CASES  IN  THE  SUPREME  COURT          [June, 

• 

Smith  v.  Smith. 

two  other  parcels  the  respondent  never  had  any  right  of 
dower,  except  in  the  undivided  half  of  which  her  husband 
died  seized;  and  had  the  commissioners  admeasured  and 
assigned  her  dower  in  these  two  parcels  by  metes  and  bounds, 
to  be  held  by  her  in  severally,  the  portion  of  the  order 
affirming  such  admeasurement  would  have  been  erroneous, 
and  we  should  have  been  compelled  to  reverse  it.  The  pre- 
cise point  made  by  the  appellant's  counsel  is  that  it  is  erro- 
neous in  such  a  case  to  admeasure  or  assign  by  metes  and 
bounds,  and  such  is  the  general  language  of  the  authorities 
on  that  question.  Thus  in  1  Co.  Lit.,  32  £,  "  for  where  he 
(the  husband)  was  seized  in  common,  there  she  cannot  be 
endowed  by  metes  and  bounds."  (Also,  Lit.,  1,  §  4i.)  Arid 
Kent,  in  his  Commentaries  (4  Kent  Com.),  citing  Co.  Lit., 
says  :  "  Of  lands  held  in  common,  the  wife  has  a  third  part 
of  the  share  of  her  husband  assigned  to  her,  to  be  held  by 
her  in  common  with  the  other  tenants."  So  in  Cruise  Dig. 
(Greenl.  ed.,  170),  the  rule  is  laid  down  in  this  form:  "For 
where  he  (the  husband)  is  seized  in  common  with  others,  his 
widow  cannot  be  endowed  by  metes  and  bounds ;  for  she, 
being  in  pro  tanto  of  her  husband's  estate,  must  take  it  in  the 
manner  in  which  he  held  it."  But  this,  I  apprehend,  means 
no  more  than  that  the  widow,  in  such  a  case,  cannot  be 
endowed  by  metes  and  bounds,  to  hold  in  severalty  against 
the  co-tenants  of  the  husband.  And  so  it  is  laid  down  in 
Bright  on  Husband  and  Wife  (1  Bright,  371) :  "  Thus,  if  the 
husband  be  tenant  in  common  in  fee  with  B.,  and  die  before 
partition,  his  widow's  dower  must  be  assigned  to  her  to  be 
held  in  common  also,  and  not  in .  severalty."  Here  the 
admeasurement,  though  by  metes  and  bounds,  is  to  be  held 
by  the  respondent  in  common  with  the  appellant.  As  to  him, 
she  holds  in  common  by  the  very  terms  of  the  assignment 
or  admeasurement,  the  same  as  did  her  husband  in  his  life- 
time. As  against  the  heirs  of  the  husband,  and  purchasers 
from  him  subject  to  a  dower  right,  under  our  laws,  the  widow 
is  always  entitled  to  assignment  or  admeasurement  by  metes 
and  bounds,  to  be  held  by  her  in  severalty.  The  effect  of  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  317 

Smith  v.  Smith. 

present  admeasurement  is  to  allow  the  respondent  to  hold  in 
eeveralty  against  the  heirs  of  the  husband,  but  in  common 
with  the  appellant,  and  this  we  think  is  right  and  according 
to  the  true  intent,  spirit  and  meaning  of  the  rule.  The 
appellant  is  not  injured  by  it  in  any  conceivable  way.  He 
holds  the  entire  estate,  after  the  admeasurement,  in  common 
with  the  widow  and  heirs  of  the  former  co-tenant,  the  same 
precisely  as  he  did  before  with  the  co-tenant  in  his  lifetime, 
and  he  has  no  reason  to  complain,  and  no  just  or  meritorious 
grounds  for  an  appeal.  The  respondent's  dower  must  be 
assigned  to  her  in  some  form,  before  she  has  any  estate  in  the 
premises.  Before  assignment  her  right  is  a  right  resting  in 
action  only.  Our  statutes  make  no  express  provision  for  the 
admeasurement  of  dower  in  the  case  of  lands  held  by  the 
deceased  husband  in  common  with  others  ;  but  they  do  give 
(2  R.  S.,  488)  to  "  any  widow,"  who  shall  not  have  had  her 
dower  assigned  to  her  within  forty  days  after  the  decease  of 
her  husband,  the  right  to  apply  to  this  court,  in  the  manner 
in  which  the  application  was  here  made,  to  have  her  dower 
admeasured.  This  includes  widows  of  persons  who  held  lands 
in  common  with  others,  as  well  as  of  those  who  held  the 
lands  in  severalty.  Section  13  of  the  statute  prescribes  the 
manner  in  which  the  admeasurement  shall  be  made  in  everj 
case.  "  They  shall  admeasure  and  lay  off,  as  speedily  as  pos- 
sible, the  one-third  part  of  the  lands  designated  in  the  order 
for  their  appointment  as  the  dower  of  such  widow,  designating 
such  part  with  posts,  stones  or  other  permanent  monuments." 

The  statute  has  been  fully  complied  with  in  this  respect  in 
this  case,  in  making  the  admeasurement,  and  we  entertain  no 
doubt  that  it  has  been  properly  made  as  respects  the  rights 
of  the  appellant. 

In  any  view,  as  his  rights  have  been  in  no  respect  invaded 
or  affected  by  the  admeasurement,  he  ought  not  to  be  allowed 
to  prosecute  the  appeal. 

On  the  question  of  notice  to  the  appellant  of  the  meeting 
of  the  commissioners  to  decide  upon  the  admeasurement,  the 
statute  does  not  in  terms  provide  for  any  notice,  but  the  prac- 


318          CASES  IN  THE  SUPREME  COURT  [June, 

Smith  v.  Smith. 

tice  is  to  give  such  notice,  and  it  ought  to  be  given  in  all 
cases,  so  that  all  parties  interested  and  who  may  desire  to 
be  heard  may  have  the  opportunity  of  being  heard  in 
regard  to  the  determination  which  the  commissioners  are 
to  make.  In  this  case  no  formal  notice  was  given.  The 
commissioners  in  their  report  state  that  the  appellant  appeared 
before  them  at  their  meeting.  But  by  a  subsequent  affidavit 
by  two  of  their  members,  it  appears  that  the  appellant  did 
not  actually  appear  before  them,  but  that  he  knew  of  the 
meeting  and  might  have  appeared  had  he  wished  so  to  do. 

It  also  appears  that  the  action  of  the  commissioners  was 
postponed  and  delayed,  from  time  to  time,  by  verbal  stipula- 
tion between  the  attorneys  of  the  respondent  and  the  appel- 
lant respectively.  In  short,  there  is  no  doubt,  from  the 
papers  before  us,  that  the  appellant  and  his  attorney  knew 
of  the  proceedings  of  the  commissioners  as  they  progressed, 
and  might  have  appeared  before  them  and  been  heard,  had 
they  desired  to  appear.  As  no  complaint  is  made  of  any 
unfairness  or  injustice  done  by  the  commissioners  in  making 
the  admeasurement,  the  mere  technical  omission  to  give  notice 
afforded  no  ground  for  refusing  to  confirm  the  report 

The  Revised  Statutes,  under  which  the  proceedings  for 
admeasurement  were  had,  do  not  give  an  appeal  from  the 
order  of  confirmation,  except  in  cases  where  the  commission- 
ers have  been  appointed  by  the  County  Court  or  by  a  surrogate. 
The  appeal  from  the  order  here,  if  it  can  be  upheld,  must 
have  been  taken  under  chapter  270  of  the  Laws  of  1854,  which 
allows  appeals  to  be  taken  in  any  special  proceeding  from 
any  judgment,  order  or  final  determination,  made  at  Special 
Term,  to  the  General  Term.  The  order  confirming  the 
report  of  the  commissioners  in  a  proceeding  of  this  kind  is  in 
the  nature  of  a  final  order  or  determination,  and  is,  therefore, 
appealable  under  that  statute.  Such  an  appeal,  however, 
does  not  stay  the  proceedings  without  the  order  of  the  court 
or  a  judge  thereof,  which  does  not  appear  to  have  been  given 
in  this  case. 

As  this  proceeding  is  not  an  action,  there  can  be  no  doubt 


1872.]  OF  THE  STATE  OF  NEW  YORK.  319 

Westcott  •».  Fargo. 

that  it  is  a  special  proceeding  within  the  definition  given  by 
the  Code.  By  the  third  section  of  the  act  above  referred  to, 
it  is  provided  that  in  special  proceedings  and  on  appeal  there- 
from costs  may  be  allowed  in  the  discretion  of  the  court,  and 
when  so  allowed  shall  be  at  the  rate  allowed  for  similar  ser- 
vices in  civil  actions.  This  appeal  not  being  the  one  provided 
for  by  the  Revised  Statutes,  under  which  the  proceedings 
were  had,  the  costs  of  the  appeal  there  provided  for  do  not 
apply  to  it,  but  the  costs  of  the  appeal  are  regulated  by  the 
act  of  1854.  "We  are  of  the  opinion  that  the  order  of  the 
Special  Term  confirming  the  report  of  the  commissioners  was 
right  and  should  be  affirmed,  with  costs  of  the  appeal,  as  upon 
appeals  from  judgments  in  actions,  to  be  paid  by  the  appel- 
lant. 

Judgment  affirmed. 


GEOKGE  WESTCOTT  and  DE  WILLOW  W.  NOKTHKUP,  Respond- 

'  r 

ents,  v.  WILLIAM  G.  FARGO,  as  President  of  the  American 
Merchants'  Union  Express  Company,  Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

In  an  action  to  recover  from  an  express  company  the  value  of  goods  lost 
by  them,  it  appearing  that  the  goods  had  been  delivered  to  defendant 
at  its  regular  place  of  business,  and  a  receipt  therefor  given  to  plaintiffs, 
and  that  they  were  entered  upon  a  shipping  bill  for  their  destination, 
•which  they  never  reached,  and  defendant  could  give  no  account  of  them 
after  such  delivery  to  it, — Held,  that  these  facts  were  sufficient  to  justify 
a  finding  of  loss  by  negligence  on  the  part  of  the  company. 

Under  such  circumstances  the  plaintiff  was  not  bound,  it  seems,  to  estab- 
lish affirmatively  that  the  loss  occurred  by  defendant's  negligence,  but 
the  burden  of  proof  was  upon  defendant  to  show  the  absence  of  neg- 
ligence on  its  part 

Cochrane  v.  Dinsmore  (Court  of  Appeals,  unreported)  considered  and  dis- 
tinguished. 

Plaintiffs  had  been  in  the  habit  of  doing  business  with  defendant,  and  had 
been  furnished  by  defendant  with  a  book  of  its  blank  receipts,  from 
which  the  receipt  for  the  goods,  valued  at  more  than  fifty  dollars,  had 
been  taken  and  sent  to  defendant  to  sign  when  delivered.  The  receipt 


320  CASES  IN  THE  SUPREME  COURT         [June, 

Westcott  v.  Fargo. 

contained  a  stipulation  that  the  carrier's  liability  for  loss  or  damage 
should  not  exceed  fifty  dollars,  unless  the  true  value  should  be  stated 
in  the  receipt.  A  blank  left  in  the  receipt  for  the  value  was  not  filled' 
and  it  appeared  that  neither  defendant,  nor  its  agent  who  received  and 
receipted  the  package,  knew  that  the  value  of  the  goods  exceeded  fifty 
dollars.  Held,  That  plaintiffs  were  bound  by  the  stipulation  contained  in 
the  receipt,  but  that  the  loss  of  goods,  as  it  proceeded  from  negligence, 
was  not  covered  by  it,  it  not  being  stipulated  that  the  defendant  should 
be  exempted  from  liability  for  loss  arising  from  negligence. 

Held,  further,  that  this  rule  would  apply,  although  the  stipulation  provided 
that  defendant  should  only  be  liable  as  forwarder. 

Held,  further,  that  an  exemption  from  liability  by  the  stipulation  in  the 
receipt,  unless  the  claim  was  presented  within  thirty  days  from  the 
accruing  of  the  cause  of  action,  did  not  apply  to  a  loss  by  negligence  ; 
and,  moreover,  that  such  presentation  was  not  a  condition  precedent  to 
the  right  of  action,  and,  as  a  limitation,  should  have  been  set  up  by 
answer. 

It  is  no  valid  objection  to  an  action  against  a  joint-stock  company,  that  the 
plaintiffs  are  corporators  or  members  of  the  company. 

APPEAL  from  a  judgment  entered  upon  the  report  of  a 
referee. 

The  action  was  brought  to  recover  the  value,  with  interest, 
of  a  package  of  merchandise,  containing  135  mink  skins,  the 
property  of  the  plaintiffs,  and  of  the  value  of  $1,134.30,  which 
had  been  delivered  to  the  defendant  for  delivery  to  the 
plaintiffs. 

The  complaint  alleged  as  follows : 

That  at  the  times  hereinafter  mentioned  the  plaintiffs  were  • 
copartners  in  trade,  doing  business  as  such  in  Utica,  Oneida 
county,  New  York,  under  the  firm  name  and  style  of  George 
"Westcott  &  Company. 

That  the  American  Merchants'  Union  Express  Company 
is,  and  was  at  the  times  hereinafter  mentioned,  a  joint-stock 
company  or  association  composed  of  more  than  seven  share- 
holders, who  are  owners,  and  jointly  and  in  common  inte- 
rested in  the  property  of  said  company,  and  on  account  of 
said  ownership  and  interest  are  liable  to  this  action. 

That  William  G.  Fargo  is,  and  was  at  the  times  hereinafter 
mentioned,  president  of  said  association. 

That  the  said  American  Merchants'  Union  Express  Com- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  321 

Westcott  v.  Fargo. 

pany  is,  and  was  at  the  times  hereinafter  mentioned,  organ- 
ized and  existing  under  and  in  pursuance  of  the  laws  of  the 
State  of  New  York,  and  engaged  in  the  business  of  forward- 
ing and  transporting  for  hire  and  reward,  as  a  forwarder  and 
common  carrier  of  goods  and  chattels  in  this  State. 

That  on  or  about  the  7th  day  of  January,  A.  D.  1870,  at 
the  city  of  New  York,  one  bale  or  package  of  merchandise, 
containing  135  mink  skins,  the  property  of  the  plaintiffs, 
and  of  the  value  of  $1,104.30,  was  delivered  to  the  said 
American  Merchants'  Union  Express  Company,  as  such  car- 
rier ;  to  be  by  the  said  company  forwarded  and  transported 
to  the  city  of  Utica,  in  the  county  of  Oneida,  and  State  of 
New  York,  and  there  safely  delivered  to  these  plaintiffs,  to 
whom  the  said  bale  or  package  was  consigned. 

That  the  said  American  Merchants'  Union  Express  Com- 
pany, as  such  forwarders  and  common  carriers,  then  and 
there  accepted  and  received  the  said  goods  and  merchandise ; 
and  then  and  there,  in  consideration  of  a  certain  reasonable 
reward,  to  be  paid  therefor  by  the  plaintiffs,  undertook  and 
promised  safely  and  securely  to  forward,  transport  and  con- 
vey the  said  goods  and  merchandise  from  the  said  city  of  New 
York  to  Utica,  aforesaid ;  and  then  and  there,  to  wit,  at  the 
last  named  place,  safely  and  securely  to  deliver  the  same  to 
these  plaintiffs,  to  whom  the  said  goods  were  consigned. 

That  the  said  American  Merchants'  Union  Express  Com- 
pany, as  such  common  carrier,  did  not,  and  would  not,  safely 
and  securely  transport,  forward  or  convey  the  said  goods  and 
package  from  the  city  of  New  York  to  Utica,  and  there,  at 
Utica  aforesaid,  to  securely  and  safely  deliver  the  same,  or 
any  part  thereof,  to  these  plaintiffs ;  but,  on  the  contrary,  the 
said  express  company,  as  such  carrier  as  aforesaid,  so  care- 
lessly and  negligently  behaved  and  conducted  itself  in  the 
premises  that,  by  and  through  the  carelessness,  negligence 
and  default  of  the  said  express  company,  its  agents  and  ser- 
vants, the  said  package  and  goods,  so  being,  and  of  the  value, 
as  hereinbefore  stated,  were  not  conveyed  to  Utica  nor 
delivered  to  these  plaintifls  to  whom  they  were  consigned  • 

LA.NSING — VOL.  VI.       41 


322  CASES  IN  THE  SUPREME  COURT         [June, 

Westcott  v.  Fargo. 

but  that  said  goods,  and  the  whole  thereof,  became,  and  were 
lost  to  these  plaintiffs,  although  the  same  were  duly  and 
often  demanded  by  these  plaintiffs  of  the  said  American 
Merchants'  Union  Express  Company. 

Wherefore  the  said  plaintiffs  demanded  judgment  against 
the  said  defendant,  as  president  of  the  American  Merchants' 
Union  Express  Company,  for  the  sum  of  $1,104.30,  with  inte- 
rest thereon  from  the  7th  day  of  January,  1870,  besides  the 
costs  and  disbursements  of  this  action. 

The  defendants'  answer  in  the  action  was  as  follows : 

"  Defendants  admit  that  the  constitution  of  the  American 
Merchants'  Union  Express  Company  is  as  is  alleged  in  the 
complaint,  and  that  William  G.  Fargo  is  president  of  said 
company  or  association. 

Defendants  deny  each  and  every  allegation  of  negligence 
or  want  of  care,  and  each  and  every  other  allegation  in  the 
said  complaint  contained,  except  as  is  hereinafter  otherwise 
stated. 

Defendants  aver  that,  at  or  about  the  time  mentioned  in 
the  complaint,  there  was  delivered  to  the  American  Mer- 
chants' Union  Express  Company,  at  the  city  of  New  York, 
a  package,  which  defendants  allege  to  be  the  same  mentioned 
in  the  complaint,  marked  "  Geo.  Westcott  &  Co.,  Utica,  New 
York,"  to  be  forwarded  by  the  said  company  to  Utica,  New 
York,  according  to  the  terms  of  the  agreement  hereinafter 
mentioned ;  that  the  contents  of  said  package,  or  the  value 
thereof,  were  not  known  or  made  known  to  said  company  j 
and  that  they  have  not  at  any  time  had,  and  have  not  now, 
any  knowledge  or  information  sufficient  to  form  a  belief  as  to 
what  were  the  contents  of  said  package,  or  the  value  thereof; 
that  at  the  time  of  the  delivery  of  the  said  package  to  the 
said  company,  to  be  so  forwarded  as  aforesaid,  there  was 
delivered  by  the  shippers  of  the  said  package  to  the  said  com- 
pany, for  their  signature,  an  agreement  partly  written  and 
partly  printed,  which  agreement  was  signed  by  said  company, 
and  redelivered  to  the  shippers  of  said  package,  and  accepted 
by  them ;  that  said  agreement  constitutes  the  sole  and  only 


1872.]          OF  THE  STATE  OF  NEW  YORK.  323 

Westcott ».  Fargo. 

contract  between  the  parties  to  this  action  respecting  the  for- 
warding and  transporting  of  the  said  package ;  and  by  the 
terms  thereof,  the  said  company  is  not  liable  beyond  the  sum 
of  fifty  dollars  for  the  alleged  loss  of  the  said  package,  if  the 
same  were  lost.  A  copy  of  the  said  agreement  is  hereto 
annexed,  marked  "A;"  and  the  original  thereof,  now  in 
plaintiffs  possession,  is  hereby  referred  to. 

That  by  the  failure  on  the  part  of  the  shippers  of  the  said 
package  to  inform  the  defendants  of  the  value  of  the  same, 
defendants  were  deprived  of  their  just  reward  for  the  trans- 
portation of  the  same. 

For  a  second  defence,  defendants  allege  that  on  or  about 
the  9th  day  of  January,  1870,  they  delivered  to  the  plaintiffs 
at  Utica,  New  York,  a  package  believed  by  the  defendants 
to  be  the  one  mentioned  in  the  complaint,  and  that  said  pack- 
age was  received  by  the  plaintiffs,  and  receipted  for  by  them. 

For  a  third  defence,  defendants  allege  that  the  American 
Merchants'  Union  Express  Company  is  a  copartnership,  and 
that  George  Westcott,  one  of  the  plaintiffs  herein,  is  a  partner 
thereof. 

The  referee  found  the  following  facts  : 

That  the  allegations  of  the  complaint  numbered  one,  two, 
three  and  four,  are  true ;  that  at  the  time  of  the  delivery  of 
the  said  bale  of  mink  skins  they  were  so  packed  as  not  to 
indicate  in  any  way  the  contents  or  value  of  the  package ; 
that  when  the  said  package  was  presented  to  the  agent  of  the 
express  company  to  be  carried,  the  agent  of  the  plaintiffs  who 
so  presented  the  package  offered  to  the  agents  of  the  express 
company,  to  be  signed,  a  paper  partly  written  and  partly 
printed,  of  which  a  copy  is  annexed  to  the  defendants' 
answer  (Exhibit  A) ;  that  the  agent  of  the  express  company 
thereupon  signed  the  said  paper,  redelivered  it  to  the  agent 
of  the  plaintiffs,  and  received  the  said  package  to  be  carried 
under  and  upon  the  contract  evidenced  by  the  said  paper ; 
that  neither  the  express  company,  nor  its  agent  who  received 
the  package,  had  any  knowledge  that  its  value  actually 
exceeded  fifty  dollars,  or  any  notice  or  reason  so  to  believe  ; 


324  CASES  IN  THE  SUPREME  COURT  [June, 

Westcott  v.  Fargo. 

that  the  said  package  has  not  been  delivered  to  the  plaintiffs, 
who  were  the  consignees  thereof,  although  they  afterward^ 
at  Utica,  applied  for  and  demanded  the  same  at  the  office  of 
the  express  company  at  that  place  of  the  persons  in  charge. 

That  at  all  the  times  mentioned  in  the  complaint  the  plain- 
tiff, George  Westcott,  was  and  still  is  a  shareholder  and  one 
of  the  owners  in  interest  in  the  said  express  company. 

That  the  plaintiffs  did  not,  within  thirty  days  next  after 
the  accruing  of  a  cause  of  action  to  them,  under  the  said 
contract  of  carriage  for  the  non-delivery  of  the  said  package, 
make  a  claim  therefor  upon  the  said  express  company  in 
writing,  in  a  statement  to  which  the  said  contract  of  carriage 
was  annexed. 

That  the  value  of  the  said  package  of  furs,  at  the  time  the 
same  was  delivered  to  the  express  company  to  be  carried,  was 
$1,104.30. 

Upon  the  facts,  found  as  aforesaid,  the  referee  decided,  as 
matter  of  law,  that  the  plaintiffs  were  entitled  to  recover 
against  the  defendant  the  value  of  the  said  package  of  furs, 
with  interest,  and  directed  judgment  to  be  entered  for 
$1,252.45 ;  and  from  the  judgment  entered  upon  the  report 
the  defendant  appealed,  having  duly  excepted  to  the  findings 
of  the  referee. 

The  contents  of  Exhibit  "  A,"  referred  to  in  the  referee's 
report,  so  far  as  necessary  to  be  stated,  were  as  follows : 

"AMERICAN  MERCHANTS'  UNION  EXPRESS  COMPANY,  ) 
NEW  YORK,  January  7th,  1870.  j 

"  Received  of  J.  Ruszits  one  bale,  said  to  contain 
valued  at  dollars,  marked  Geo.  Westcott  &  Co., 

Utica,  K  T. 

"  Which  we  undertake  to  forward  to  the  nearest  point  of 
destination  reached  by  this  company,  subject  expressly  to  the 
following  conditions,  namely :  This  company  is  not  to  be  held 
liable  for  any  loss  or  damage  except  as  forwarders  only.  *  *  * 

"  Nor  shall  this  company  be  liable  for  any  loss  or  damage 
of  any  box,  package  or  thing,  for  over  fifty  dollars,  unless  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  325 

Westcott  v.  Fargo. 

just  and  true  value  thereof  is  herein  stated.  *  *  *  This 
company  will  not  be  liable  ijpr  any  loss  or  damage  unless  the 
claim  therefor  shall  be  made  in  writing,  within  thirty  days 
from  the  accruing  of  the  cause  of  action,  in  a  statement  to 
which  this  receipt  shall  be  annexed.  The  party  accepting 
this  receipt  hereby  agrees  to  the  conditions  herein  contained. 

"  For  the  Company. 

"  C.  E.  WOOD,  Agent." 

H.  C.  Van  Vorst  and  F.  Neman,  for  the  appellant. 

Charles  Mason,  for  the  respondents. 

Present — MTTLLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  As  we  understand  the  find- 
ing of  the  referee,  the  fact  is  expressly  found  that  the  pack- 
age in  question  was  lost  through  the  careless  and  negligent 
conduct  of  the  express  company's  agents  or  servants.  He 
finds  that  the  allegations  of  the  complaint  numbered  one,  two, 
three  and  four,  are  true.  The  complaint,  as  it  appears  in  the 
case,  does  not  contain  those  numbers,  but  it  was  stated  upon 
the  argument  by  the  plaintiffs'  counsel,  and  understood  to  be 
conceded  by  the  other  side,  that  number  four  in  the  complaint, 
as  it  stood  at  the  time  of  the  trial,  contained  the  allegation  of 
loss  by  reason  of  the  careless  and  negligent  conduct  and  man- 
agement of  the  defendants'  agents  and  servants.  But  if  such 
was  not  the  finding  in  terms,  and  such  finding  should  be 
deemed  necessary  to  support  and  uphold  the  judgment,  the 
court  will  presume  that  the  referee  did  find  such  to  be  the 
fact,  if  the  evidence  in  the  case  would  authorize  or  justify  such 
finding.  (Grant  v.  Morse,  22  N.  T.,  323 ;  Chubbuck  v.  Ver- 
nam,  42  id.,  432 ;  Rider  v.  Powell,  28  id.,  310.) 
*  We  think  the  evidence  before  the  referee  was  abundantly 
sufficient  to  authorize  the  finding  of  the  fact  of  the  loss  of  the 
'package  by  the  negligence  of  the  defendant.  It  was  received 
by  the  defendant  at  its  regular  place  of  business,  and  receipted 
to  the  plaintiffs,  and  was  put  on  the  shipping  bill  for  its  place 


326  CASES  IN  THE  SUPREME  COURT          [June, 

Westcott  v.  Fargo. 

of  destination.  After  this  the  defendant's  agents  can  give  no 
account  of  it  whatever,  or  at  least  do  not,  and  profess  to  be 
unable  to  do  so.  The  very  fact  that  after  receiving  it  in  this 
way  the  defendant's  agents  paid  so  little  attention  to  the 
package  as  to  be  unable  to  give  any  other  or  further  account 
of  it,  is  sufficient  of  itself  to  justify  a  finding  of  loss  by  negli- 
gence, and  even  gross  negligence,  if  that  were  necessary  to 
create  the  liability  and  uphold  the  judgment. 

The  defendant's  counsel  insists  that  before  a  recovery  can 
be  had  for  a  negligent  loss  of  goods,  it  is  for  the  plaintiff  to 
show  affirmatively  how  the  loss  occurred,  and  that  its  occur- 
rence was  through  the  defendant's  negligence.  But  in  most 
cases,  and  especially  in  a  case  of  this  kind,  it  would  be  utterly 
impossible  for  the  plaintiffs  to  make  any  such  proof.  The 
goods  are  exclusively  in  the  possession  of  the  defendant,  and 
the  plaintiffs  have  no  access  to  them,  and  presumptively  can 
give  no  account  of  them  after  delivery,  except  as  they  derive 
information  from  those  having  the  lawful  custody.  If  they 
do  not  and  cannot  tell,  how  can  the  plaintiffs  ?  The  defend- 
ant ought  to  know,  and  the  plaintiffs  have  no  means  of  know- 
ing. If  the  rule  contended  for  were  the  true  one,  there  could 
be  no  recovery  for  loss,  in  a  vast  majority  of  cases,  where  the 
recovery  depended  upon  establishing  negligence.  Such  a 
rule  would  be  quite  too  dangerous,  and  too  destructive  to  the 
interests  of  all  bailors  to  be  sanctioned  or  countenanced.  On 
this  point  we  are  referred  to  the  case  of  Cochran  v.  Dins- 
tnore,  decided  in  the  Court  of  Appeals,  and  not  yet  reported, 
and  have  been  furnished  with  the  manuscript  opinion  of  the 
chief  justice  of  that  court  in  the  case.  But  the  decision  in 
that  case  does  not  sustain  the  position  contended  for. 

In  that  case  it  was  known  or  supposed  to  be  known  how 
the  loss  occurred.  It  was  by  the  burning  of  the  vessel  in 
which  the  money  or  property  was  carried.  And  the  judge 
charged  the  jury,  that  unless  the  defendant  gave  evidence  to 
show  that  the  ship  did  not  take  fire  through  the  negligence 
of  those  in  charge,  the  plaintiff  was  entitled,  as  matter  of  law, 
to  recover;  that  the  burden  was  upon  the  defendant  to 


1872.1  OF  THE  STATE  OF  NEW  YORK.  327 

Westcott  v.  Fargo. 

negative  the  fact  of  negligence,  and  to  show  that  there  was 
no  negligence  in  regard  to  the  origin  of  the  fire  in  the  vessel. 
This  was  held  to  be  erroneous  in  point  of  law,  and  that  the 
case  should  have  been  submitted  to  the  jury  upon  all  the  evi- 
dence, to  find  whether  the  loss  was  in  fact  occasioned  by  the 
defendant's  negligence.  That  decision  does  not,  as  we  con- 
ceive, affect  this  case,  because  here  the  fact  of  negligence  is 
found,  or  is  presumed  to  have  been  found,  from  the  evidence. 

Assuming  that  the  fact  of  loss  by  the  defendant's  negli- 
gence is  established,  is  the  defendant  liable  beyond  the  amount 
of  $50  ? 

The  value  of  the  package  lost  was  $1,104.30. 

The  defendant  was  a  common  carrier,  and,  but  for  the 
receipt  or  contract  it  entered  into  on  receiving  the  goods, 
would  clearly  have  been  liable  for  the  full  value. 

We  understand  the  rule  to  be  now  well  settled,  that  a  com- 
mon carrier  may  limit  his  common-law  liability  in  certain 
particulars  and  to  a  certain  extent  by  express  contract  with 
the  owner  or  shipper  of  the  goods.  (Dorr  v.  2V.  J.  Steam 
Nav.  Co.  11  N.  Y.,  485 ;  Mercantile  Mut.  Ins.  Co.  v.  Calebs, 
20  id.,  173) ;  Bissel  v.  N.  Y.  Central  E.  R.  Co.,  25  id., 
442;  Parsons  v.  Monteath,  13  Barb.,  353;  Moore  v.  Evans, 
14  id.,  524;  Meyer  v.  Harnden's  Express  Co.  24  How., 
290 ;  French  v.  Buffalo,  N.  S.  &  Erie  R.  R.  Co.,  4  Keyes, 
108.)  But  they  cannot  limit  their  liability  by  a  mere  notice, 
even  though  the  notice  is  brought  to  the  knowledge  of  the 
person  whose  property  they  carry.  (Blossom  v.  Dodd,  43  ]N". 
Y.,  264 ;  Dorr  v.  N.  J.  Steam  Nav.  Co.,  supra.)  It  must  be 
by  express  contract. 

Questions  have  sometimes  arisen  whether  a  receipt  given 
the  carrier  for  the  goods,  containing  a  clause  limiting  and 
restricting  his  liability,  operated  as  a  contract  to  that  effect, 
between  the  carrier  and  the  owner  of  the  property  carried 
under  it,  as  in  the  case  of  Blossom  v.  Dodd,  just  cited.  In 
such  cases  it  has  generally,  if  not  uniformly,  been  held  that 
whether  such  receipt  was  to  be  regarded  as  a  contract 
depended  upon  the  question  whether  the  owner  of  the  goods 


CASES  IN  THE  SUPREME  COURT          [June, 
Westcott  v.  Fargo. 

taking  the  receipt  knew  its  contents,  or  is  presumed  to  have 
known  them.  If  he  knew,  or  is  presumed  to  have  known, 
from  the  nature  of  the  transaction,  the  law  infers  his  assent 
and  makes  it  the  contract  between  the  parties.  (Blossom  v. 
Dodd,  supra.)  Otherwise  there  is  no  meeting  of  minds  and 
and  no  express  contract.  In  the  case  at  bar,  the  plaintiffs 
must  be  presumed  to  have  known  the  contents  of  the  receipt 
and  to  have  assented  to  it. 

They  furnished  the  blank  which  the  defendant's  agent 
signed.  They  had  previously  been  in  the  habit  of  doing 
business  with  the  defendant,  and  had  been  furnished  with  a 
book  containing  these  blank  printed  receipts,  which  they 
kept,  and  from  which  the  receipt  in  question  was  taken  by 
them  and  sent  to  the  defendant  to  be  signed  when  the  goods 
were  delivered.  The  blank  left  in  the  receipt  for  the  value 
of  the  goods  was  not  filled,  and  the  referee  finds  that  neither 
the  defendant  nor  its  agent,  who  had  received  and  receipted 
the  package,  had  any  knowledge  that  its  value  exceeded  fifty 
dollars,  or  any  notice  or  reason  so  to  believe. 

We  are  of  the  opinion,  therefore,  that  the  referee  correctly 
held  that  the  package  was  received  to  be  carried  according  to 
the  terms  of  the  receipt,  and  upon  the  contract  of  which  the 
receipt  was  the  evidence.  The  defendant  is  not,  therefore, 
liable  in  any  event  beyond  the  sum  of  fifty  dollars,  if  the 
loss  falls  within  the  contract  and  is  covered  by  it.  But  it 
does  not. 

Loss  occasioned  by  the  carelessness  or  negligence  of  the 
defendant  or  its  agents  or  servants  is  not  mentioned  in  terms 
in  the  contract,  and  the  law  will  not  presume  that  a  loss  so 
occasioned  was  intended  by  the  parties.  The  contract  is  to 
be  construed  most  strictly  against  the  carrier,  where  it  rests 
in  a  receipt  signed  by  him  only ;  and  where  it  stipulates  for  a 
restricted  liability  in  case  of  loss,  it  will  not  be  construed  to 
embrace  a  loss  arising  from  the  careless  and  negligent  acts  of 
the  carrier  or  his  servants,  unless  a  loss  from  such  cause  is 
provided  for  in  express  and  unequivocal  terms  in  the  contract. 
(  Wells  v.  Steam  Navigation  Co.,  8  N.  Y.,  375 ;  Stedman  v. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  329 

Westcott  v.  Fargo. 

Western  Transportation  Co.,  48  Barb.,  97 ;  Hooper  v.  Wells, 
Fargo  &  Co.,  5  Am.  Law  Eeg.  [N".  S.],  16,  and  note  to  case.) 

And  the  rule  of  construction  is  the  same  where  by  the 
terms  of  the  contract  the  carrier  is  only  to  be  held  liable  as  a 
forwarder.  The  exemption  in  such  cases  only  applies  to 
losses  for  which  the  carrier  would  be  liable  as  insurer  in  his 
capacity  of  common  carrier.  This  we  regard  as  a  sound  and 
salutary  rule  of  construction. 

The  law  seems  to  be  now  well  settled  in  this  State,  that  a 
carrier  may,  by  express  contract,  exempt  himself  from  liabil- 
ity for  a  loss  arising  even  from  the  carelessness  and  negligence 
of  his  servants  or  agents. 

But  in  all  such  cases  where  the  exemption  for  loss  from 
such  cause  is  expressly  provided  for  in  the  agreement,  it  has 
been  uniformly  held  that  such  contract  had  no  application  to 
losses  occasioned  by  the  fraud  or  gross  negligence  of  the  car- 
rier or  his  servants  and  agents,  and  that  the  stipulation  for 
exemption  only  applied  to  losses  arising  from  want  of  ordi- 
nary care.  (Guildaume  v.  Hamburg  &  Am.  Packet  Co.,  42 
N.  Y.,  212 ;  Wells  v.  The  Steam  Navigation  Co.,  8  id.,  375 ; 
Alexander  v.  Green,  7  Hill,  544.)  But  here  there  is  no  such 
stipulation,  and  it  must  be  held  that  the  contract  does  not 
relate  to  losses  arising  from  the  negligence  of  the  defendant 
or  its  agents.  The  same  rule  is  applicable  to  the  stipulation  in 
respect  to  presenting  the  claim  within  thirty  days  from  the 
accruing  of  the  cause  of  action. 

But,  beside  this,  the  presentation  of  the  claim  within  the 
time  and  in  the  manner  there  specified,  is  not  a  condition  pre- 
cedent to  the  right  of  action,  and  as  a  limitation  it  is  not  set 
up  in  the  answer.  (Place  v.  The  Union  Express  Co.,  2  Hil- 
ton, 19.) 

It  is  no  valid  objection  to  the  action  that  the  plaintiffs  are 
corporators  or  members  of  the  company.  The  action  is  against 
the  corporation.  •  We  are,  therefore,  of  the  opinion  that  the 
judgment  is  right,  and  should  be  affirmed. 

Judgment  affirmed. 

LANSING — VOL.  VI.         42 


380  CASES  IN  THE  SUPREME  COURT          [June, 

Clift  ®.  Northrup. 


JOSEPH  F.   CLIFTJ   Respondent,  v.  ANSON  NOKTHKUP, 
Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

A  claim  of  defendant  against  plaintiff,  arising  out  of  partnership  transac- 
tions between  them,  the  partnership  being  terminated  before  the  com- 
mencement of  the  action,  may  be  set  up  as  a  counter-claim  in  an  action, 
on  contract,  and  the  amount  due  defendant  as  such  partner  may  be 
ascertained  by  an  accounting  between  the  parties. 

The  answer  set  up,  in  relation  to  such  counter-claim,  that  the  partnership 
terminated  at  a  certain  day,  which  was  several  months  before  the  com- 
mencement of  the  action.  That  plaintiff  conducted  the  business  and 
acted  as  financial  manager,  and  had  possession  of  the  funds  and  all 
payments,  and  that  he  had  in  his  possession  all  the  capital  and  profits 
of  the  business.  Held,  it  sufficiently  appeared  from  these  allegations 
that  the  counter-claim  was  in  existence  at  the  commencement  of  the 
action. 

APPEAL  from  a  judgment  entered  in  favor  of  defendant 
upon  a  trial  by  the  court  without  a  jury.  The  facts  are 
stated  in  the  opinion. 

Hiscock,  Gifford  &  Doheny,  for  the  appellant. 
William  J.  Wallace,  for  the  respondent. 
Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  action  was  upon  con- 
tract for  goods  sold  and  delivered.  The  answer  contained  no 
denial  of  the  complaint,  but  set  up  by  way  of  defence  a 
counter-claim  in  favor  of  the  defendant  against  the  plaintiff 
growing  out  of  partnership  transactions  between  plaintiff 
and  defendant,  in  which  there  was  alleged  to  be  due  the 
defendant  as  such  partner  the  sum  of  $125.  The  answer 
asked  for  an  accounting  between  the  parties  as  partners ; 
that  the  amount  found  due  the  defendant  on  such  account- 
ing might  be.  set  off  and  allowed  against  plaintiff 's  claim, 
and  a  judgment  rendered  in  favor  of  the  defendant  against 
the  plaintiff  for  the  balance.  The  plaintiff  replied,  denying 


1872.]  OF  THE  STATE  OF  NEW  YORK.  331 

Clif  t  v.  Northrup. 

the  counter-claim.  On  the  trial  of  the  action  "at  the  circuit 
before  the  justice  holding  the  same,  without  a  jury,  the 
defendant  offered  to  prove  the  facts  stated  in  his  answer,  but 
the  justice,  upon  objection  by  plaintiff's  counsel,  overruled 
the  offer,  and  held  that  the  answer  did  not  constitute  a 
defence  to  the  action,  and  rendered  judgment  in  favor  of  the 
plaintiff  for  the  amount  claimed  in  the  complaint.  To  this 
ruling  the  defendant's  counsel  excepted.  This  ruling  was 
erroneous.  The  precise  question  was  decided  the  other  way 
on  demurrer  in  Gage  v.  Angell  (8  How.  Pr.  E,.,  335),  and 
that  decision  has  been  cited  with  approval  in  the  Court  of 
Appeals  in  Chambers  v.  Lewis  (28  K.  Y.,  462)  and  in  Oum- 
mings  v.  Morris  (25  id.,  628),  and  also  in  several  cases  in  the 
Supreme  Court.  (See  also  Gray  v.  Goodman,  12  N.  Y., 
266  ;  Phillips  v.  Graham,  17  id.,  270  ;  Blair  v.  Claxton,  18 
id.,  529 ;  Bank  of  Tor.onto  v.  Hunter,  20  How.  Pr.  R.,  292.) 

The  counter-claim  comes  directly  within  section  150  of  the 
Code.  For  the  purposes  of  this  question  the  answer  must  be 
assumed  to  be  true.  It  is,  then,  a  claim  existing  in  favor  of 
the  defendant  against  the  plaintiff  in  the  action,  and  the  sub- 
ject of  a  several  judgment  between  them.  It  arises  out  of 
contract,  being  a  demand  between  partners,  and  arising  from 
partnership  transactions.  That  a  demand  of  one  partner 
against  another,  growing  out  of  the  partnership,  is  a  demand 
arising  on  contract,  cannot  be  denied.  A  partnership  has  its 
foundation  in  contract,  express  or  implied,  and  cannot  exist 
without  it.  The  Code  (§  150)  expressly  authorizes  counter- 
claims of  an  equitable  character,  if  they  arise  on  contract,  to 
be  set  up  against  legal  claims  arising  on  contract  in  an  action 
at  law. 

The  plaintiff's  counsel  seeks  to  avoid  the  difficulty  by 
insisting  that  it  does  not  appear  by  the  answer  that  the  coun- 
ter-claim existed  at  the  time  the  action  was  commenced,  and 
that,  for  aught  that  appears  in  the  answer,  it  may  have 
accrued  between  the  time  of  the  commencement  of  the  action 
and  the  drawing  and  verification  of  the  answer.  The  decision 
at  Special  Term  obviously  was  not  placed  upon  any  such 


332  CASES  IN  THE  SUPREME  COURT          [Nov., 

Haggerty  v.  The  People. 

ground;  but  upon  the  broad  ground  that  a  claim  of  that  kind 
was  no  defence  in  such  an  action.  But  it  does  appear  suffi- 
ciently by  the  answer  that  the  defendant's  counter-claim  was 
due  when  the  action  was  commenced.  The  action  was  com- 
menced June  1,  1871.  The  answer  alleges  that  the  partner- 
ship, out  of  which  his  claim  grew,  commenced  in  December, 
1870,  and  continued  until  about  the  20th  of  January,  1871, 
when  it  was  dissolved  and  abandoned  by  mutual  consent.  It 
also  alleges  that  the  plaintiff  conducted  the  business  and  acted 
as  financial  manager,  and  had  possession  of  the  funds  and  all 
payments ;  and  that  he  now  has  in  his  possession  all  the  capi- 
tal and  all  the  earnings  and  profits,  amounting  in  all  to  $250. 
The  plain  intendment  is  that  the  plaintiff  had  had  this  fund, 
at  least  from  the  time  of  the  dissolution,  which  was  more 
than  four  months  before  the  action  was  commenced. 

The  judgment  must  therefore  be  reversed  and  a  new  trial 
ordered,  with  costs  to  abide  event. 

Judgment  reversed. 


THOMAS  HAGGEKTY,  Plaintiff  in  Error,  v.  THE  PEOPLE, 
Defendants  in  Error. 

No.  1. 
(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1872.) 

If  during  his  term  of  punishment  a  prisoner  escapes  from  jail  or  State 
prison,  where  he  is  confined  upon  conviction  of  crime  he  may  be  retaken 
after  the  term  and  held  to  answer  for  the  residue  of  the  time  for  which 
he  was  imprisoned,  under  the  provisions  of  §  20,  2  R.  S.,  685. 

The  clause  of  that  section  which  directs  the  prisoner's  imprisonment  until 
tried  for  an  escape,  or  discharged  on  failure  to  prosecute  therefor,  is  not 
a  limitation  of  the  time  of  imprisonment  upon  his  first  offence,  but  is,  it 
seems,  intended  to  provide  for  his  retention  for  additional  punishment 
for  the  escape. 

A  prisoner,  escaped  during  his  term  of  imprisonment,  and  retaken  after 
the  time  for  which  he  was  imprisoned  has  expired,  may  be  returned  to 
State  prison,  for  a  time  equal  to  the  remainder  of  his  term  unserved,  by 
the  court  which  sentenced  him,  upon  information  or  suggestion  on  behalf 
of  the  people  and  trial  of  the  question  of  his  identity  and  escape. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  333 

Haggerty  ».  The  People. 

The  Court  of  Sessions  of  Albany  county  has  jurisdiction  to  direct  such 
reimprisonment  of  a  criminal  upon  whom  it  has  passed  sentence. 

The  provision  of  the  Constitution  (art.  1,  §  6)  which  declares  that  "  no 
person  shall  be  held  to  answer  for  a  capital  or  other  infamous  crime 
*  *  *  unless  on  presentment  or  indictment  of  a  grand  jury,"  does  not 
affect  the  remedy  by  "  information  "  to  enforce  punishment  already  duo 
under  sentence. 

THIS  is  a  writ  of  error  to  review  a  proceeding  in  the  Albany 
Sessions,  on  returning  the  plaintiff  in  error  to  the  Clinton 
State  prison  to  serve  out  an  unexpired  term,  on  the  ground 
that  he  had  escaped  from  the  prison. 

At  the  Albany  Sessions,  held  on  the  13th  of  March,  1872, 
Haggerty  being  brought  to  the  bar,  the  district  attorney  pro- 
duced to  the  court  an  indictment  of  Haggerty,  in  September, 
1868,  in  the  same  court,  for  robbery  in  the  first  degree,  with 
the  minutes  of  his  conviction  for  robbery  in  the  second 
degree,  and  sentence  to  the  Clinton  prison  for  three  years. 

The  district  attorney  thereupon  filed  an  information  or 
suggestion  in  the  following  form  : 

At  a  Court  of  Sessions  held  in  and  for  the  county  of  Albany, 
at  the  City  Hall  in  the  city  of  Albany,  on  the  13th  day  of 
March,  1872. 

Present — Hon.  T.  J.  VAN  ALSTYNE,  County  Judge. 
EDWARD  GIBBONS,  and 
WM.  J.  REED, 

Justices  of  the  Sessions. 


THE  PEOPLE  OF  THE  STATE  OF  NEW 

YORK 

against 

THOMAS  HAGGERTY. 

And  now  at  this  day,  before  this  court,  come  the  people  of 
the  State  of  New  York,  by  Nathaniel  C.  Moak,  their  district 
attorney,  and  allege  and  show  to  this  court  that  heretofore, 
to  wit,  of  September  term  of  a  Court  of  Sessions,  held  in 
and  for  the  said  county  of  Albany,  in  the  year  of  our  Lord 


334  CASES  IN  THE  SUPREME  COURT          [Nov., 

Haggerty  «.  The  People. 

one  thousand  eight  hundred  and  sixty-eight,  the  defendant, 
Thomas  Haggerty,  was  duly  indicted  for  the  crime  of  robbery 
in  the  first  degree.  That  afterward,  at  a  Court  of  Sessions 
duly  held  in  and  for  the  said  county  of  Albany,  on  the 
eighteenth  day  of  September,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  sixty-eight,  the  said  Thomas 
Haggerty  was  duly  tried,  by  and  before  the  said  court,  found 
guilty  and  duly  convicted  of  the  offence  of  robbery  in  the 
second  degree.  Whereupon,  the  said  court  having  jurisdic- 
tion of  the  offence  and  of  the  person  of  the  defendant,  duly 
sentenced  the  said  Thomas  Haggerty  to  be  confined  in  the 
State  prison  at  Clinton,  at  hard  labor,  for  the  term  of  threo. 
years.  That  the  said  Thomas  Haggerty  was  duly  committed 
to  the  said  State  prison  at  Clinton,  under  and  pursuant  to 
such  conviction  and  sentence ;  that  on  the  fourteenth  of 
October,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  sixty-nine,  the  said  Thomas  Haggerty,  while  confined  as 
a  prisoner  in  the  said  State  prison,  upon  a  conviction  for  the 
said  offence  of  robbery  in  the  second  degree  as  aforesaid,  did 
escape  therefrom  and  go  at  large  whithersoever  he  would, 
and  hath  ever  since  been  and  continued  so  at  large.  Wherefore, 
the  said  people  pray  that  this  court  will  order  the  execution 
of  its  former  judgment,  and  that  execution  thereof  may  be 
awarded  against  said  Thomas  Haggerty  ;  that  he  be  returned 
to  said  State  prison  at  Clinton,  there  to  be  imprisoned  and 
confined  therein,  at  hard  labor,  for  the  remainder  of  the 
term  for  which  he  was  sentenced  to  be  imprisoned  as  afore- 
said, and  for  that  portion  of  the  said  imprisonment  he  has 
not  suffered,  to  wit,  for  the  term  of  one  year  eleven  months 

and  four  days. 

NATHANIEL  C.  MOAK, 

District  Attorney. 

Whereupon,  the  said  allegations  and  suggestions  having 
been  duly  filed  and  entered  of  record  by  order  of  the  said 
Court  of  Sessions,  upon  this  it  is  asked  and  demanded  of  the 
said  Thomas  Haggerty,  in  his  own  proper  person,  by  the  said 
court,  whether  he  hath  anything  to  say  why  execution  of  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  335 

Haggerty  v.  The  People. 

former  sentence  and  judgment  of  this  court  should  not  be 
awarded  against  him,  who  nothing  saith ;  whereupon  the 
court  ordered  the  following  to  be  entered  upon  the  record  : 

Upon  this  the  said  Thomas  Haggerty  said  nothing ;  where- 
upon the  court  directed  the  clerk  to  enter  a  plea  or  answer 
by  the  said  Thomas  Haggerty  that  he  is  not  the  person  men- 
tioned in  the  record,  and,  if  so,  that  he  did  not  escape  as 
alleged  by  the  said  people  by  their  district  attorney. 

And  the  same  was  .so  entered. 

To  this  the  said  people  of  the  State  of  New  York,  by 
Nathanial  C.  Moak,  their  district  attorney,  pleaded  as  follows : 
To  which  the  said  people,  by  their  district  attorney,  reply, 
ore  tenus,  that  he,  the  said  Thomas  Haggerty,  is  the  same  per- 
son and  did  escape  as  before  alleged,  and  this  the  said  district 
attorney  is  ready  to  verify. 

On  motion  of  the  district  attorney  a  jury  was  then  empan- 
neled  to  try  the  issues  thus  presented,  and  a  trial  thereof  had. 

The  district  attorney  produced  a  copy  of  the  indictment, 
minutes  of  the  conviction  and  sentence,  certified  by  the  county 
clerk,  as  required  by  the  Revised  Statutes.  (2  R.  S.,  739,  § 
10;  2  Edm.  St.,  763.)  He  then  proved  by  McCotter,  a 
deputy  sheriff  at  the  time  of  Haggerty's  conviction,  that  he 
was  the  person  convicted,  and  that  after  his  conviction  he 
.conveyed  him  back  to  the  jail. 

The  district  attorney  then  produced  and  read  in  evidence 
the  copy  minutes  of  Haggerty's  conviction  on  which  he  was 
committed  to  the  prison,  and  proved  by  O'Brien,  one  of  the 
keepers  of  the  prison,  that  on  the  14th  of  October,  1869, 
while  Haggerty  was  in  his  gang,  he  and  four  others  forcibly 
escaped  from  the  prison,  and  that  Haggerty  had  never  been 
returned.  No  evidence  was  offered  by  Haggerty. 

The  court  charged  the  jury,  who  returned  a  verdict  "  that 
the  defendant,  Thomas  Haggerty,  was  indicted,  tried,  con- 
victed, sentenced  and  committed  to  the  State  prison,  under 
and  in  pursuance  of  the  sentence,  as  stated  in  the  allegations 
of  the  people ;  also,  that  he  escaped  from  said  prison  at  the 


336  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  v.  The  People. 

time  and  in  the  manner  stated  in  the  said  allegations,  and 
hath  ever  since  been  and  continued  so  at  large." 

The  record  proceeds; 

"Whereupon  the  said  Court  of  Sessions,  in  and  for  the  said 
county  of  Albany,  rendered  and  gave  the  following  judgment 
and  sentence : 

"  It  is  ordered,  adjudged  and  determined  by  this  court  that 
the  execution  of  the  said  former  judgment  thereof  be  awarded 
against  said  Thomes  Haggerty  ;  that  he  be  returned  to  said 
State  prison  at  Clinton,  there  to  be  imprisoned  and  confined 
therein  at  hard  labor  for  the  remainder  of  the  term  for  which 
he  was  sentenced  to  be  imprisoned  as  aforesaid,  and  for  that 
portion  of  the  said  imprisonment  he  has  not  suffered,  to  wit, 
for  the  term  of  one  year,  eleven  months  and  four  days." 

Jacob  H.  Clute,  for  the  plaintiff  in  error.  The  County 
Sessions,  of  Albany  county,  had  no  jurisdiction  over  the 
person  of  Thomas  Haggerty,  or  of  the  case  on  the  indict- 
ment for  robbery,  after  sentence  passed  on  the  18th  day 
of  September,  1868.  The  commitment  had  been  made  by 
the  court,  and  the  defendant  had  been  imprisoned  in  the 
State  prison  at  Clinton.  If  he  escaped,  and  was  retaken 
before  the  expiration  of  the  term  for  which  he  had  been  sen- 
tenced, he  could  be  taken  back  to  the  prison  and  kept  there 
until  the  term  expired,  and  no  longer.  There  is  no  statute 
giving  the  County  Sessions  power  to  order  the  enforcement 
of  its  sentence,  after  an  escape  and  the  expiration  of  the  term 
of  imprisonment.  The  defendant  could  not  be  tried  except 
on  indictment.  (Art.  1,  sec.  6,  Cons.  S.  IS".  Y. ;  Art.  5 
[Amdts.  1Y89]  Cons.  U.  S.) 

Nathaniel  C.  Moak,  district  attorney,  for  the  people.  The 
method  or  proceeding  adopted  by  the  district  attorney  to 
return  Haggerty,  was  correct. 

By  article  one,  section  seventeen,  of  the  Constitution  of 
this  State,  such  parts  of  the  common  law  as  are  not  abrogated 
thereby,  or  changed  by  statute,  are  made  a  part  of  the  law  of 
this  State. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 

Haggerty  v.  The  People. 

At  common  law  there  were  two  methods  of  proceeding 
against  persons  as  criminals,  one  by  information  presented  by 
the  prosecuting  officer  upon  his  own  motion,  and  the  other  by 
indictment  by  a  grand  jury.  (1  Chitty's  Cr.  Law,  844-847 ; 
Cole  on  Grim.  Informations,  9 ;  1  Bish.  Grim.  Proc.  [2d  ed.], 
§§  36,  141-147,  712-715;  1  Whart.  Cr.  Law,  §§  213,  214; 
see  also  1  Bishop  Grim.  Proc.  [2d  ed.,]  §  141.) 

Our  Constitution  (article  1,  §  6)  upon  the  subject  of  crimes 
is  as  follows : 

"  No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  *  *  *  unless  on  presentment  or 
indictment  of  a  grand  jury ;  and  in  any  trial,  in  any  court 
whatever,  the  party  accused  shall  be  allowed  to  appear  and 
defend  in  person  and  with  counsel  as  in  civil  actions." 

This  prohibition  applies  only  to  a  presentment  on  which  a 
party  charged  with  crime  is  sought  to  be  placed  on  trial  there- 
for and  convicted  thereof,  and  consequently  leaves  the  com- 
mon-law remedy,  by  information,  in  force  in  all  other  cases 
where  it  may  be  necessary  to  resort  to  it. 

The  present  proceeding  was  not  a  trial  of  Haggerty  for  the 
crime  of  robbery,  nor  for  the  crime  of  escaping  from  the  prison. 
(1  Bish.  Crim.  Proc,  2d  ed.,  1208-1212.) 

In  the  King  v.  Okey  and  others  (1  Levinz.,  61)  it  is  said : 
"  Whereupon  they  pleaded  that  they  were  not  the  persons, 
and  issue  was  taken  thereon  and  a  jury  returned  immediately 
to  try  it,  which  was  done ;  and  they  were  not  permitted  to 
challenge  peremptorily,  for  they  are  not  now  to  be  tried  for 
the  treason,  but  only  of  the  identity  of  persons."  In  a  note 
to  Sir  Charles  Ratcliffe's  Case,  in  ISHowell  State  Trials,  438, 
giving  the  case  from  the  records  of  the  court,  it  is  said  the 
accused  was  denied  a  peremptory  challenge ;  "  this  being 
a  proceeding  very  different  from  the  trial  upon  a  not 
guilty,  in  an  original  prosecution  on  a  charge  of  high  treason 
or  other  crime,  the  identity  of  the  person  being  the  single  feet 
to  be  inquired  of,  and  a  case  in  which  the  crown  had  a  right 
by  law  to  proceed  instanter." 

Indeed,  it  was  not  a  trial  for  any  crime,  nor  was  defendant 
LANSING — VOL.  VL  43 


338  CASES  IN  THE  SUPREME  COURT          [Nov., 

Haggerty  v.  The  People. 

sentenced  for  any.  The  trial  took  place  and  the  sentence  was 
imposed  in  1868.  Haggerty  not  having  suffered  the  impris- 
onment imposed,  the  court  was  simply  asked  to  enforce  its 
former  judgment,  and  the  means  to  be  used  to  determine 
whether  the  sentence  had  been  executed  was  a  matter  of  prac- 
tice for  the  court.  The  accused  was  given  the  benefit  of  a  fair 
hearing  of  the  question  before  a  common-law  jury,  and  was 
confronted  by  the  witnesses  to  prove  the  facts,  with  the  privi- 
lege of  cross-examination. 

This  was  the  method  adopted  in  Ratdiffds  Case  (18  Ho  well's 
St.  Tr.,  430)  and  in  the  King  v.  Obey  (1  Levinz,  61).  Black- 
stone  gives  the  form  of  a  record  in  such  a  proceeding  in  his 
appendix  to  the  fourth  volume  of  his  Commentaries.  (4  Bl. 
Com.,  Appx.  No.  3.)  It  is  not  as  full  as  that  in  the  present 
case,  nor  did  the  attorney-general  even  file  an  information. 
It  is  fairer  to  the  prisoner,  however,  to  do  so,  in  order  that 
he  may  be  apprised  of  what  the  prosecution  claims.  He  cer- 
tainly is  not  injured  by  greater  particularity  than  the  law 
requires. 

It  is,  perhaps,  true  that  the  prison  authorities,  if  Haggerty 
were  caught,  could  reclaim  him ;  but  suppose  they  did  not 
see  fit  to  do  so,  have  not  the  people  a  right  to  insist  that  the 
sentence  ol  the  court  shall  be  carried  out  and  an  interest  in 
the  same  being  done  ? 

In  Bland  v.  The  State  (2  Ind.,  608),  the  prisoner  was  con- 
victed of  murder  and  sentenced  to  be  hung.  Previously  to 
the  day  named  for  his  execution  he  made  his  escape,  and  was 
afterward  retaken  by  the  sheriff,  and  kept  in  custody  until 
the  then  next  term  of  the  court,  at  which  term  he  was  again 
brought  before  the  court,  and  the  fact  of  his  escape,  etc., 
being  made  known,  the  court  again  awarded  execution  against 
him  on  the  former  judgment.  On  error  to  the  Supreme 
Court,  the  order  to  carry  out  the  sentence  was  affirmed,  the 
court  (p.  611)  saying :  "  There  was  not  the  slightest  ground 
for  this  plea.  The  defendant  not  having  been  executed  con- 
formably to  the  previous  judgment,  in  consequence  of  his 
escape  from  custody,  the  court  had,  after  his  recaption,  the 


1 8 72.]  OF  THE  STATE  OF  NEW  YORK.  339 

Haggerty  c.  The  People. 

same  jurisdiction  over  him,  for  the  purpose  of  awarding 
execution,  that  they  had  when  said  judgment  was  rendered. 
The  following  case  is  in  point :  In  1716,  one  Charles  E-at- 
cliffe  was  convicted,  in  England,  of  treason,  and  whilst  he 
was  under  sentence  of  death,  he  escaped  out  of  prison  and 
went  to  France.  About  thirty  years  afterward,  he  was  taken 
and  brought  before  the  Court  of  King's  Bench,  and  was 
asked  what  he  had  -to  say  why  execution  should  not  be 
awarded  and  done  upon  him  according  to  the  said  judgment. 
He  pleaded  that  he  was  not  the  identical  Charles  Ratcliffe 
named  in  the  record.  The  attorney-general  replied  that  he 
was.  The  issue  was  found  against  the  prisoner,  and  the 
court  awarded  execution,  appointing  a  day  for  that  purpose, 
and  he  was  beheaded  accordingly.  (Rex  v.  Ratcliffe,  18 
Howell's  St.  Tr.,  429 ;  9  Hargrave's  St.  Tr.,  582 ;  1  Wilson's 
Eep.,  150 ;  Foster's  Crown  Law,  40.) " 

2d.  The  Court  of  Sessions  is  a  continuous  court.  It  is 
the  court  which  acts,  and  not  the  persons  who  compose  it. 
(Loweriberg  v.  The  Peopl^  27  1ST.  Y.,  340 ;  Ferris  v.  The 
People,  35  K  Y.,  128;  People  v.  Quinibo  Appo,  20  N.  Y., 
543-547  ;  People  v.  Nauqhton,  7  Abb.  K  S.,  422 ;  Keen  v. 
The  Queen,  2  Cox  Cr.  Gas.,  341 ;  Regina  v.  Charlton,  1 
Crawf.  &  Dix,  315,  320.) 

It  had  power,  therefore,  to  carry  out  its  judgment  at  a 
former  term,  and  to  see  that  such  judgment  was  executed. 

3d.  Haggerty  was  sentenced  to  suffer  three  years'  imprison- 
ment at  hard  labor.  By  staying  a  little  over  a  year,  commit- 
ting a  felony  by  escaping,  and  remaining  secreted  until  after 
three  years  from  his  trial  or  first  incarceration,  the  judgment 
of  the  court  was  not  executed,  nor  had  he  suffered  the 
imprisonment.  The  whole  subject  is  ably  and  clearly  treated 
by  Mr.  Bishop,  in  his  work  on  Criminal  Procedure  (2d  ed., 
§§  1208-1212). 

Our  statutes  provide  (2  R.  S.,  685,  §  20 ;  2  Edm.  St.,  707) 
that  "  If  any  prisoner  confined  in  a  jail,  or  in  a  State  prison, 
upon  a  conviction  for  a  criminal  offence,  shall  escape  there- 
from, he  may  be  pursued,  retaken  and  imprisoned  again,  not- 


340  CASES  IN  THE  SUPREME  COURT          [Nov., 

Haggerty  v.  The  People. 

withstanding  the  term  for  which  he  was  imprisoned  may 
have  expired  at  the  time  when  he  shall  he  retaken,  and  shall 
remain  so  imprisoned  until  tried  for  the  escape,  or  until  he 
be  discharged,  on  a  failure  to  prosecute  therefor." 

At  the  Sessions  Haggerty's  counsel  claimed  the  latter  clause 
of  this  section,  by  implication,  provided  that  when  retaken 
the  prisoner  could  only  be  held  until  he  could  be  indicted 
and  tried  for  the  offence  of  escaping. 

The  statute  of  Indiana  is  word  for  word  with  ours.  (2  G-. 
&  H.,  454,  §§  55,  56 ;  29  Ind.,  107.)  In  the  case  of  Exparte 
Clifford  (29  Ind.,  106),  Clifford  sued  out  a  habeas  corpus  to 
the  warden  of  the  prison  in  which  he  was  confined.  The 
warden  returned  (29  Ind.,  107),  "  That  he  held  Clifford  by 
virtue  of  a  commitment  which  is  set  forth  in  the  return, 
showing  that  the  latter  was,  by  the  Montgomery  Circuit 
Court,  found  guilty  of  grand  larceny,  and,  on  the  13th  of 
September,  1862,  sentenced  to  be  imprisoned  in  the  State 
prison  for  three  years.  The  return  further  avers  that,  on  the 
9th  of  January,  1863,  Clifford  escaped  and  remained  at  large 
until  the  4th  of  April,  1867 ;  that  on  that  day  he  was  returned 
(having  been  rearrested)  to  his  custody,  as  such  warden,  and 
that  he  holds  him  by  virtue  of  such  commitment."  The 
court  below  held  the  return  good  and  remanded  the  prisoner. 
He  appealed  to  the  Supreme  Court.  That  court,  after  reciting 
the  statute  of  the  State,  proceeds  (pp.  101-109)  as  follows: 
"  The  question  presented  for  our  consideration  is  whether  the 
appellant  can  avail  himself  of  the  fact  that,  while  he  was  ille- 
gally at  large,  the  date  at  which  his  imprisonment  was  to 
have  terminated  has  passed.  The  law  is  stated  by  Russell,  in 
his  work  on  Crimes  (vol.  1,  p.  421),  thus :  '  It  seems  to  be 
clearly  agreed,  by  all  the  books,  that  an  officer  making  fresh 
pursuit  after  a  prisoner,  who  has  escaped  through  his  negli- 
gence, may  retake  him  at  any  time  afterward,  whether 
he  find  him  in  the  same  or  a  different  county ;  and  it  is 
said  generally,  in  some  books,  that  an  officer  who  has  negli- 
gently suffered  a  prisoner  to  escape  may  retake  him  wherever 
he  finds  him,  without  mentioning  any  fresh  pursuit ;  and, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  341 

Haggerty  v.  The  People. 

indeed,  since  the  liberty  gained  by  the  prisoner  is  wholly 
owing  to  his  own  wrong,  there  seems  to  be  no  reason  why  he 
should  have  any  manner  of  advantage  from  it.'  The  sections 
of  the  statute  we  have  cited  are  contained  in  '  An  act  defining 
felonies  and  prescribing  punishment  therefor.'  It  did  not 
require  legislation  to  authorize  the  recapture  of  an  escaped 
prisoner,  and  his  confinement  until  he  has  served  out  the  full 
continuous  term  of  his  sentence ;  nor  would  we  expect,  in 
such  an  act,  any  limitation  of  that  right.  A  new  crime  is 
defined  and  a  punishment  is  prescribed ;  that  punishment, 
however,  is  fixed,  without  regard  to  whether  the  prisoner 
escaping  was  recaptured  immediately  after  his  escape,  and 
has  served  out  his  full  term,  or  whether  he  has  not  been 
recaptured  until  the  date  when  his  imprisonment  would  have 
ended  has  passed.  If,  in  the  latter  case,  he  avoids  serving  his 
original  term  of  imprisonment,  and  is  only  punished  for 
his  escape,  as  is  the  prisoner  recaptured  immediately  after  his 
flight,  the  penalty  is  unequal  and  unreasonable,  and  amounts 
to  a  premium  upon  success  in  avoiding  capture.  The  inten- 
tion of  the  framers  of  the  law  must  be  the  chief  guide  to  the 
true  meaning  of  the  statute.  And  this  is  to  be  gathered 
i  from  the  occasion  and  necessity  of  the  law,  from  the  mischief 
felt,  and  the  objects  and  the  remedy  in  view ;  and  the  intention 
is  to  be  taken  or  presumed  according  to  what  is  consonant  to 
reason  and  good  discretion.'  (1  Kent,  511.)  The  reason  for 
and  the  object  of  the  statute  are  a  clue  to  the  true  meaning ; 
and  when  the  real  intention  is  accurately  ascertained,  it  will 
always  prevail  over  the  literal  sense  of  the  terms.  (15  Johns., 
358 ;  14  Mass.,  92 ;  4  Corns.,  144.)  For  it  is  a  maxim  of 
interpretation,  as  old  as  Plowden,  that  '  a  thing  within  the 
letter  of  the  statute  is  not  within  the  statute,  unless  it 
be  within  the  intention  of  the  makers.'  (Plowd.,  18, 
88  ;  3  Barn.  &  Aid.,  266 ;  4  id.,  212 ;  3  Cow.,  89 ;  4 
Litt.  [Ky.],  377.)  In  this  act  the  declared  purpose  is  to 
define  a  felony  and  prescribe  its  punishment.  We  do  not 
think  it  was  intended  to  change  the  common-law  rule  in  regard 
to  the  capture  of  escaped  felons,  but  simply  to  authorize  the 


342  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  v.  The  People. 

additional  holding,  after  the  sentence  of  the  law  has  been  ful- 
filled, not  evaded,  until  opportunity  is  given  for  a  prosecution 
for  the  new  offence  of  escape.  The  word  '  term,'  in  the  fifty- 
sixth  section  cited,  is  used,  we  think,  as  the  synonym  of  the 
word  'time.'  It  is  objected  that  this  construction  leaves  it  to 
the  officer  in  charge  of  the  prison  to  determine  the  question 
of  the  escape  and  its  date,  but  a  writ  of  habeas  corpus  will 
secure  a  judicial  examination  of  this  question." 

In  State  v.  Wamire  (16  Ind.,  357),  it  was  held  that  "  if 
the  defendant  escapes  after  sentence  and  before  execution, 
he  may  be  retaken,  brought  into  court,  identified  and  resen- 
tenced." 

In  Cleek  v.  The  Commonwealth  (21  Gratt,  777),  Cleek 
was  sentenced  to  be  confined  in  the  jail  of  Bath  county  for 
ten  months,  to  commence  on  the  13th  of  July,  1870.  On 
the  21st  of  September,  1870,  he  escaped,  and  was  not  appre- 
hended or  rearrested  and  returned  until  the  14th  of  January, 
1871.  He  sued  out  a  habeas  corpus.  The  court  refused  to 
discharge,  and  remanded  him.  On  error  to  the  Supreme 
Court  of  Appeals  the  order  of  the  court  below  was  affirmed, 
the  court  saying  (pp.  781-784) :  "  Could  the  plaintiff'  in  error 
be  lawfully  detained  in  prison,  after  the  expiration  of  ten 
months  next  succeeding  the  verdict,  and  for  a  period  equal 
to  that  which  elapsed  after  his  escape  from  jail,  and  while  he 
was  going  at  large  during  the  said  term  of  ten  months  ?  The 
jury  found  the  prisoner  guilty,  and  ascertained  '  that  he  be 
imprisoned  in  the  county  jail  for  the  term  of  ten  months, 
and  that  he  pay  a  fine  of  ten  dollars.'  The  judgment  of  the 
court  was  for  the  fine  and  costs,  and  that  he  be  imprisoned 
in  the  said  jail  for  the  term  of  ten  months,  commencing  on 
the  13th  day  of  July,  1870.  He  had  not  been  so  imprisoned 
for  the  said  term  at  the  expiration  of  that  period  of  time 
next  and  after  the  verdict ;  having  escaped  from  said  jail  on 
the  21st  of  September,  1870,  and  remained  at  liberty  until 
the  14th  of  January,  1871,  when  he  was  retaken  and  com- 
mitted. He  will  not  have  been  so  imprisoned  for  the  said 
term  until  he  shall  have  remained  in  jail,  after  the  expiration 


1872.]  OF  THE  STATE  OF  NEW  YORK.  343 

Haggerty  v.  The  People. 

of  the  ten  months  from  the  date  of  the  verdict  (which  ten 
months  expired  on  the  13th  day  of  May,  1871),  for  a  period 
equal  to  that  which  elapsed  between  the  said  21st  of  Septem- 
ber, 1870,  and  the  said  14th  of  January,  1871 ;  that  is,  a 
period  of  three  months  and  ^wenty-three  days.  He  has  not 
yet  been  subjected  to  the  entire  judgment  of  the  court.  He 
has  avoided  it  by  his  own  voluntary  act,  and  that,  too,  a 
criminal  act.  Surely  a  man  cannot  avoid  the  punishment  of 
one  crime  by  committing  another;  cannot  get  rid  of  an 
imprisonment  to  which  he  has  lawfully  been  condemned  by 
breaking  jail  and  making  his  escape.  Nothing  would  seem 
to  be  plainer  than  this.  It  may  be  said  that  the  jailer  must 
be  governed  by  the  term  prescribed  by  the  judgment,  com- 
mencing at  and  running  continuously  from  the  date  of  the 
judgment ;  that  when  that  term,  so  commencing  and  running, 
is  ended,  he  can  no  longer  detain  the  prisoner  under  the 
judgment ;  and  that  it  would  be  dangerous  to  give  to  a  mere 
ministerial  officer  power  to  prolong  the  imprisonment  for  the 
purpose  of  obtaining  compensation  for  so  much  of  it  as  may 
have  been  avoided  by  an  escape.  But  there  would  be  no 
difficulty  in  ascertaining  the  measure  of  such  compensation. 
The  jailer  would  always  know  the  precise  period  of  the 
escape  and  of  the  recapture,  and  would  act  at  his  peril.  If 
he  erred,  the  party  aggrieved  would  have  a  prompt  and  effi- 
cient remedy  by  habeas  corpus,  in  which  the  facts,  on  which 
the  legality  of  the  act  of  the  jailer  would  depend,  could  be 
easily  and  clearly  ascertained.  He  would  also  have  a  remedy 
by  an  action  of  false  imprisonment.  It  may  be  further  said 
that  the  escape  itself  is  a  criminal  act,  for  which  the  party 
may  be  prosecuted  and  punished ;  that  such  punishment  may 
embrace  what  remains  due  and  unpaid  for  the  original 
offence ;  that  that  is  the  proper  and  only  way  of  completing 
the  punishment  of  the  original  offence,  and  that  in  this  case 
a  prosecution  for  escape  has  actually  been  commenced,  and 
is  now  pending  against  the  plaintiff  in  error.  The  answer 
to  this  objection  is,  that  the  two  offences  are  distinct,  and 
each  is  subject  to  its  appropriate  punishment.  Having  been 


844  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  v.  The  People. 

convicted  of  the  original  offence,  and  sentenced  to  punish- 
ment therefor,  he  must  suffer  that  punishment  and  cannot 
avoid  it  by  the  commission  of  another  offence,  for  which  he 
may  or  may  not  be  prosecuted  and  punished." 

In  Dolarts  Case  (101  Mass.,  219)  it  was  held  that  "the 
sentence  of  a  convict  to  imprisonment,  for  a  term  expressed 
only  by  designating  the  length  of  time,  is  to  be  satisfied  only 
by  his  actual  imprisonment  for  that  length  of  time,  unless 
remitted  by  legal  authority ;  and  if  a  sentence  is  limited  to 
take  effect  upon  the  expiration  of  a  former  sentence,  its  period 
will  not  begin  to  run  until  the  first  sentence  has  been  so 
fully  performed  or  legally  discharged. 

"  If  a  prisoner  under  sentence,  to  be  imprisoned  for  a  term 
expressed  only  by  the  length  of  time,  escapes  during  the  term, 
the  period  during  which  he  remains  at  large  does  not  abridge 
the  period  of  imprisonment  which  remains  for  him  to  suffer 
before  fully  performing  the  sentence." 

In  Leftwick  v.  The  Commonwealth  (20  Gratt.,  716, 722),  the 
Court  of  Appeals  of  Virginia  held  that,  "  Where  the  prisoner 
escaped  after  sentence,  the  court  would  not  hear  the  case  on 
appeal  until  he  returned  into  custody.  But  that  when  the 
court  had  heard  the  case  without  knowledge  of  the  escape, 
and  reversed  the  judgment  against  the  prisoner,  it  would  not 
set  aside  the  judgment." 

Present — MILLER,  P.  J. ;  P.  POTTER  and  PARKER,  JJ. 

By  the  Court— MILLER,  P.  J.  The  statute  (2  R.  S.,  685, 
§  20 ;  2  Edm.  St.,  709)  provides  that  "  If  any  prisoner,  con- 
fined in  a  jail  or  in  a  State  prison  upon  a  conviction  for  a 
criminal  offence,  shall  escape  therefrom,  he  may  be  pursued, 
retaken  and  imprisoned  again,  notwithstanding  the  time  for 
which  he  was  imprisoned  may  have  expired  when  he  shall  be 
retaken,  and  shall  remain  so  imprisoned  until  tried  for  an 
escape,  or  until  he  shall  be  discharged  on  a  failure  to  prose- 
cute therefor."  Under  this  provision  I  think  it  is  clear  that 
the  prisoner  escaping  can  be  held  to  answer  for  the  residue 


1872.]  OF  THE  STATE  OF  NEW  YORK.  345 

Haggerty  v.  The  People. 

of  the  term  for  which  he  has  been  sentenced,  even  if  retaken 
after  the  expiration  of  the  time.  The  statute  is  explicit  that 
he  may  be  retaken  and  imprisoned  although  the  time  has 
expired,  and  evidently  means  npon  the  sentence  from  which 
he  has  temporarily  escaped.  The  latter  clause  of  the  enact- 
ment was  not  intended  as  a  limitation  or  restriction  on  the 
first,  but  to  provide  for  an  additional  imprisonment  for  the 
escape.  If  it  was  designed  merely  to  punish  for  the  escape, 
then  the  provision,  "notwithstanding  the  term  for  which  he 
was  imprisoned  may  have  expired  at  the  time  when  he  s  hal 
be  retaken,"  would  be  useless,  of  no  avail  whatever,  and 
should  have  been  omitted.  Besides,  it  is  unreasonable  to 
suppose  that  a  prisoner,  by  committing  another  crime,  could 
entirely  evade  and  escape  the  consequences  of  the  one  for 
which  he  had  been  incarcerated.  No  such  absurdity  was 
intended ;  and  it  would  be  doing  violence  to  the  spirit  of  the 
act  to  give  it  any  such  construction.  We  are  not,  however, 
without  authority  upon  the  question  discussed.  The  statute 
of  Indiana  is  precisely  like  our  own  (2  G.  &  H.,  454,  §§  55 
and  56) ;  and  it  has  been  held  in  that  State  that  a  prisoner 
who  has  been  retaken  may  be  compelled  to  serve  out  the 
remainder  of  his  time,  even  although  it  had  expired  before  he 
was  arrested  and  taken  into  custody,  (fix parte  Clifford,  29 
Indiana,  106 ;  see,  also,  State  v.  Wamire,  16  id.,  359 ;  Cleek 
v.  Commonwealth,^  21  Gratt.,  177 ;  Dolarfs  Case,  101  Mass., 
219 ;  Leftwich  v.  Commonwealth,  20  Gratt.,  716 ;  Bland  v. 
The  State,  2  Indiana,  608.) 

The  prisoner  being  thus  liable  to  serve  out  the  remainder 
of  his  term  upon  his  old  sentence,  I  see  no  objections  to  the 
proceedings  taken  by  the  district  attorney  to  return  him  to 
the  State  prison,  and  am  of  the  opinion  that  the  Court  of 
Sessions  of  Albany  county,  in  which  the  prisoner  was  sen- 
tenced, and  which  is  a  court  that  has  a  permanent  status, 
recognized  by  law,  had  jurisdiction  to  enforce  the  sentence 
and  to  carry  out  the  judgment  which  had  been  previously 
rendered.  Although  the  proceeding  is  novel  in  this  State, 
perhaps,  because  no  occasion  has  arisen  where  it  has  been 

LANSING — VOL.  VI.        44 


346  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  «.  The  People. 

required,  yet  it  appears  to  have  been  sanctioned  by  the  common- 
law  practice  in  similar  cases.  Two.  methods  of  proceeding 
against  criminals  are  sanctioned  at  common  law.  The  one  by 
information  presented  by  the  prosecuting  officer  on  his  own 
motion,  and  the  other  by  indictment  by  a  grand  jury.  The 
rule  is  laid  down  by  Bishop  (1  Grim.  Proc.,  §  141)  as  follows : 
"  According  to  the  common  law  of  England,  as  it  stood  at  the 
time  when  the  body  of  the  English  common-law  was  by  our 
ancestors  brought  over  by  them  to  this  country,  the  proceed- 
ing of  criminal  information  is,  in  cases  of  misdemeanor  (with 
the  exception  of  misprision  for  treason,  which  is  a  misdemea- 
nor), a  public  remedy  against  the  wrong-doer,  concurrent  with 
the  indictment ;  subject,  however,  to  practical  exceptions  and 
limitations.  The  doctrine  is  in  an  English  book  stated  thus : 
"  An  information  for  an  offence  is  a  surmise  or  suggestion 
upon  record,  on  behalf  of  the  king  (or  queen  regent),  to  a 
court  of  criminal  jurisdiction,  and  is,  to  all  intents  and  pur- 
poses, the  king's  suit.  It  differs  principally  from  an  indict- 
ment in  this,  namely:  that  in  an  indictment  the  facts  consti- 
tuting the  offence  are  presented  to  the  court  upon  the  oath 
of  a  grand  jury;  whereas,  in  informations,  the  facts  are  pre- 
sented by  way  of  suggestion  or  information  to  the  court  by 
some  authorized  public  officer  in  behalf  of  the  crown.  Crim- 
inal informations  derive  their  origin  from  the  common  law. 
They  may  be  filed  by  the  attorney-general,  ex  offieio,  upon 
his  own  discretion,  without  any  leave  of  the  court."  (See 
also  Chitty's  Crim.  Law,  844,  847 ;  Cole  on  Crim.  Infs.,  9 ;  1 
Bishop's  Crim.  Proc.  (2ded.),  §§36,  141,147,712,715;  IWhar. 
Cr.  Law,  §§213,  214;  King  v.  Okey  et  al.,  1  Levinz,  61 ;  Rat- 
clife's  Case,  18  Howell  St.  Tr.,  430 ;  Foster's  Cr.  Law,  40 ;  4 
Black.  Com.,  Appx.  No.  3.)  A  prisoner  who  has  escaped  is 
always  liable  to  arrest,  and  the  subject  as  well  as  the  mode  of 
procuring  his  return  is  fully  stated  in  2  Bish.  Cr.  Pro.,  §  1208, 
to  and  including  §  1211. 

The  provision  of  the  Constitution  (art.  1,  §  6)  which  declares 
that  "  no  person  shall  be  held  to  answer  for  a  capital  or  other 
infamous  crime"  *  *  *  "  unless  on  presentment  or 


1872.]  OF  THE  STATE  OF  NEW  YORK.  347 

Haggerty  v.  The  People. 

indictment  of  a  grand  jury,"  etc.,  applies  to  presentments  for 
crimes,  without  affecting  the  remedy  by  information,  when  it 
may  be  necessary  to  revert  to  it  as  a  proceeding  to  enforce 
punishment  already  incurred  under  a  prior  conviction  and 
sentence.  There  being  no  conflict  with  the  Constitution  in 
such  a  proceeding,  and  the  common  law  being  in  force  in  this 
State,  where  not  abrogated  or  changed  by  statute  (Const.,  art. 
1,  §  IT),  the  court  proceeded  according  to  law  to  determine 
the  question  whether  the  prisoner  was  the  person  who  had 
been  previously  sentenced,  and  to  direct  that  he  be  returned 
to  the  State  prison  to  serve  out  the  remainder  of  his  time. 
The  judge  in  his  charge  to  the  jury  made  some  remarks  in 
reference  to  the  prisoner's  not  being  a  witness  on  his  own 
behalf,  but  he  subsequently  expressly  withdrew  that  part  of 
the  charge  and  told  the  jury  that  they  were  not  to  take  it  into 
consideration  at  all. 

I  am  inclined  to  think  that  if  there  was  any  error  in  this 
respect,  it  was  cured  by  the  explanation  which  followed  the 
charge,  within  the  principle  laid  down  in  Ruloff  v.  The  Peo- 
ple (45  N.  Y.,  213). 

As  the  Court  of  Sessions  had  jurisdiction  and  there  was  no 
error  in  the  proceedings,  they  must  be  affirmed. 

Proceedings  affirmed. 


THOMAS  HAGGERTY,   Plaintiff    in  Error,   v.   THE    PEOPLE, 
Defendants   in  Error 

No.  2. 
(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1873.) 

One  who  was  convicted  of  a  felony,  and  imprisoned,  upon  sentence,  in  the 
State  prison  for  a  term  of  years,  escaped  before  the  expiration  of  such  term, 
and,  after  it  would  have  expired,  had  he  remained  in  custody,  committed 
another  felony.  On  being  arrested  and  brought  before  the  court  which 
imposed  the  original  sentence,  that  court  ordered  the  execution  of  the 
remainder  thereof.  The  accused,  notwithstanding  the  objection  that  he 
was  civilly  dead,  was  put  upon  trial  for  the  second  felony,  convicted 
thereof  and  sentenced  therefor,  the  second  term  to  commence  at  the 
expiration  of  the  first.  Held,  that  there  was  no  error,  and  the  conviction 
affirmed. 


348  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  ®.  The  People. 

THIS  was  a  writ  of  error  to  review  a  conviction  of  the  plain- 
tiff in  error  for  burglary.  He  was  indicted  for  having,  at  the 
city  of  Albany,  on  the  16th  day  of  December,  1871,' burgla- 
riously entered  the  store  of  Francis  Shields  and  Adam  Shields, 
and  stolen  therefrom  a  quantity  of  pennies  and  other  coins. 

The  trial  was  moved  at  the  Albany  sessions  on  the  14th  of 
March,  1872,  when  Haggerty's  counsel  produced  a  record  of 
proceedings  in  the  same  court  the  day  before  (see  preceding 
case),  showing  that  on  the  18th  of  September,  1868,  Haggerty 
was  convicted  of  robbery  in  the  second  degree,  and  sentenced 
to  confinement  at  hard  labor  in  the  State  prison  at  Clinton 
for  three  years  ;  that  he  was  committed  to  said  prison  under 
and  pursuant  to  such  conviction  and  sentence ;  that  on  the 
14th  of  October,  1869,  while  so  confined,  Haggerty  violently 
escaped  from  the  prison,  and  had  ever  since  been  at  large. 
The  Court  of  Sessions,  on  the  13th  of  March,  1872,  ordered 
its  former  sentence  to  be  executed,  and  that  he  be  remanded 
to  the  prison,  and  there  confined,  and  suffer  imprisonment 
for  a  term  equal  to  the  portion  of  the  three  years  he  had  not 
suffered. 

Haggerty's  counsel,  upon  that  record,  objected  to  his  being 
tried  for  the  burglary  committed  by  him  after  his  escape  and 
while  at  large,  in  December,  1871,  on  the  ground  that  he  was 
civilly  dead  and  could  not  be  tried.  The  court  overruled  the 
objection  and  exception  was  taken.  The  trial  then  took 
place. 

The  jury  found  him  guilty,  and  he  was  sentenced  to  the 
State  prison  at  Clinton  for  two  years,  to  commence  at  the 
expiration  of  the  first  term  of  imprisonment  to  which  he  had 
been  adjudged,  and  prisoner's  counsel  sued  out  a  writ  of  error. 

Jacob  II.  Clute,  for  the  plaintiff  in  error.  The  defendant 
was  civilly  dead.  (3  E.  S.,  5th  ed.,  p.  988,  §§  29,  30,  33 ; 
O'Brien  v.  Hagan,  1  Duer,  664 ;  1  Parker  Cr.,  374.) 

The  defendant,  when  his  trial  was  moved,  was  under  sen- 
tence, and,  while  under  sentence,  could  not  be  tried  for  any 
offence  committed  before  the  first  sentence.  (3  R.  S.,  title  7; 


187-2.1  OF  THE  STATE  OF  NEW  YORK.  349 

Haggerty  t>.  The  People. 

part  4,  chap.  1,  §  11,  5th  ed. ;   Archibold's  Grim.  Prac.,  pp. 
676  and  678.) 

Nathaniel  C.  Moak,  district  attorney,  for  the  defendant  in 
error.  1st.  One  who  has  been  convicted  of  a  felony  and  sen- 
tenced to  imprisonment  is  not  civilly  dead,  so  far  as  proceed 
ings  against  him  are  concerned.  As  a  defendant  he  may  be 
served  with  process  in  the  State  prison  and  a  valid  judgment 
rendered  against  him.  (Davis  v.  Dujfie,  3  Keyes,  606 ;  8 
Bosw.,  617.)  As  a  part  of  his  punishment  he  is  deprived  of 
certain  rights.  Neither  an  individual  nor  the  State  loses  any 
against  him. 

The  language  of  the  statute  (2  R.  S.,  701,  §  19;  2  Edm. 
St.,  724)  is  as  follows :  "  Section  19.  A  sentence  of  imprison- 
ment in  a  State  prison,  for  any  term  less  than  for  life,  sus- 
pends all  the  civil  rights  of  the  person  so  sentenced,  and 
forfeits  all  public  offices  and  all  private  trusts,  authority  or 
power  during  the  term  of  such  imprisonment." 

2d.  It  was  urged  in  the  Sessions  that  under  the  statute 
(2  K.  S.,  700,  §  11 ;  2  Edm.  St.,  723)— which  provides  that 
"  When  any  person  shall  be  convicted  of  two  or  more  offences 
before  sentence  shall  be  pronounced  upon  him  for  either 
offence,  the  imprisonment  to  which  he  shall  be  sentenced 
upon  the  second  or  other  subsequent  conviction  shall  com- 
mence at  the  termination  of  the  first  term  of  imprisonment 
to  which  he  shall  be  adjudged,  or  at  the  termination  of  the 
second  term  of  imprisonment,  as  the  case  may  be" — the  defend- 
ant could  not  be  tried  for  an  offence  committed  by  him  sub- 
sequent to  the  first  conviction  and  sentence.  This  point  was 
not  well  taken. 

Mr.  Bishop  (1  Bish.  Cr.  Law,  5th  ed.,  §  953 ;  4th  ed., 
§  731)  lays  down  the  rule  thus :  "  When  a  prisoner,  under  an 
unexpired  sentence  of  imprisonment,  is  convicted  of  a  second 
offence,  or  when  there  are  two  or  more  convictions  on  which 
sentence  remains  to  be  pronounced,  the  judgment  may  direct 
that  each  succeeding  period  of  imprisonment  shall  commence 
on  the  termination  of  the  period  next  preceding  ;  a  doctrine 


350  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  t>.  The  People. 

however,  which  has  been  latterly,  it  is  believed  without  due 
consideration,  denied  in  Indiana ;  and  if,  in  such  a  case,  the 
earlier  period  is  afterward  shortened  by  a  pardon  of  the 
offence,  or  a  reversal  of  the  sentence  on  writ  of  error,  the 
next  following  one  commences  immediately,  the  same  as  if 
the  earlier  were  ended  by  lapse  of  time." 

Again  he  says  (1  Bish.  Crim.  Proc.,  §  1139,  2d  ed. ;  §  878, 
1st  ed.),  "  Though  the  sentence  to  imprisonment  ought  pro- 
perly to  specify  at  what  time  it  is  to  be  carried  out,  yet  time 
is  not  of  the  essence  of  such  a  sentence.  Therefore,  where  a 
defendant,  who  had  been  convicted  of  an  assault,  was  sen- 
tenced to  be  imprisoned  for  two  calendar  months  '  from  and 
after  the  first  of  November  next,'  but  did  not  go  into  prison 
according  to  the  sentence  ;  and,  at  a  subsequent  term,  it  was 
directed  that  the  sentence  for  two  months'  imprisonment  be 
immediately  executed,  the  proceeding  was  held  to  be  correct. 
Hence,  also,  we  have  the  doctrine,  already  mentioned,  that 
if  the  prisoner  was  previously  sentenced  to  a  period  of  impri- 
sonment, a  second  sentence,  for  another  offence,  may  be 
made  by  the  court  to  commence  when  the  former  shall  have 
expired." 

In  The  King  v.  Bath  (1  Leach,  4th  ed.,  441)  it  was  held 
that  "  a  sentence  of  transportation  may  be  a  second  time 
passed  upon  a  prisoner,  although  the  term  for  which  he  was 
before  transported  is  unexpired."  In  Russell  v.  Common- 
wealth (7  Searg.  &  Rawle,  489)  it  was  held  that  "  When  a 
person  has  been  sentenced  to  hard  labor  on  a  former  indict- 
ment, and  the  term  of  imprisonment  is  not  yet  expired,  sen- 
tence of  imprisonment  at  hard  labor  may  be  passed  upon 
another  indictment,  to  commence  from  the  day  on  which  the 
former  sentence  is  to  expire." 

In  Ex  parte  Meyers  (44  Missouri,  279),  the  prisoner  was 
convicted,  at  the  March  term,  1866,  of  grand  larceny,  and  sen- 
tenced at  the  same  term  to  imprisonment  for  two  years. 
Instead  of  being  sent  to  the  penitentiary,  so  his  time  would 
be  running,  he  was  detained  in  jail  until  May  term,  and  then 
tried  upon  another  indictment,  for  an  offence  committed 


1872.J  OF  THE  STATE  OF  NEW  YORK.  351 

Haggerty  v.  The  People. 

before  the  first  trial.  The  court  very  properly  held  that  such 
injustice  could  not  be  perpetrated  under  the  statute  of  that 
State,  similar  to  our  own.  In  this  case,  however,  the  offence 
was  committed  after  the  former  conviction.  The  precise 
question  here  involved  came  up  in  the  same  State  in  Ex 
parte  Brunding  (47  Missouri,  255),  where  a  prisoner,  before 
the  expiration  of  his  term,  escaped,  committed  another  crime 
while  at  large,  was  convicted  and  sentenced  therefor,  although 
still  under  sentence  for  his  first  offence.  The  court  held  the 
second  conviction  legal,  and  that  the  term  thereof  commenced 
at  the  expiration  of  the  first.  The  court  said :  "  The  peti- 
tioner asks  to  be  discharged  from  the  custody  of  the  warden 
of  the  penitentiary,  on  the  ground  that  the  time  for  which  he 
was  lawfully  imprisoned  has  expired.  The  facts  are  these  : 
In  1864  he  was  indicted  for  two  separate  offences,  in  the  St. 
Louis  Criminal  Court,  and  convicted  and  sentenced  to  two 
years'  imprisonment  in  the  penitentiary  for  each  offence. 
Before  the  expiration  of  the  term  of  his  imprisonment  he 
unlawfully  made  his  escape  ;  and,  while  so  absent  and  running 
at  large,  he  committed  the  offence  of  grand  larceny,  was 
indicted,  convicted,  sentenced,  and  again  returned  to  the  peni- 
tentiary. He  has  duly  served  out  the  time  for  which  he  was 
sentenced  under  the  first  two  convictions,  and  is  now  detained 
for  the  last.  This  detention  he  alleges  to  be  illegal,  for  the 
reason  that  he  was  already  under  sentence.  We  do  not  see 
that  the  statute  (1  Wagn.  Stat,  513,  §  9),  nor  the  case  of  Ex 
parte  Meyers  (44  Mo.,  279),  and  Ex  parte  Turner  (45  id., 
331),  have  anything  to  do  with  the  caee  here  presented.  The 
statute  provides  that  where  a  prisoner  is  convicted  of  two  or 
more  offences  at  the  same  term,  the  conviction  in  all  the  cases 
must  precede  the  sentence  in  either.  But  here  the  prisoner 
was  not  in  actual  custody.  He  had  escaped  and  was  free, 
and,  true  to  his  nature,  he  could  not  enjoy  liberty  without 
committing  crime ;  and  to  say  that,  under  such  circumstances, 
there  is  no  law  to  justify  his  punishment,  is  rather  a  startling 
proposition.  Establish  the  doctrine  that  an  escaped  convict 
may  commit  any  crime,  and  that  he  cannot  be  tried  and  pun 


352  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  v.  The  People. 

ished  because  he  rightfully  ought  to  be  in  the  penitentiary 
instead  of  running  at  large,  and  it  will  lead  to  the  most  dis- 
astrous results.  I  am  not  aware  of  any  statutory  provision  to 
support  such  a  principle,  and  the  counsel  have  referred  to 
none. 

"  It  seems  to  be  settled  that  a  prisoner  under  an  unexpired 
sentence  of  imprisonment,  where  he  commits  an  offence,  may 
be  convicted,  and  that  the  succeeding  period  of  imprisonment 
will  commence  on  the  termination  of  the  period  next  preced- 
ing. (1  Bish.  on  Grim.  Law,  §  731,  note ;  1  Bish.  on  Grim. 
PP.,  §  878.)  It  follows  that  the  petitioner  is  not  entitled  to 
his  discharge,  and  that  he  must  be  remanded." 

The  heinousness  of  the  offence  committed  after  the  first 
conviction  cannot  change  the  rule  of  law.  In  the  case  of 
the  State  v.  Connell  (49  Mo.,  282),  the  defendant,  while  in 
confinement  under  a  conviction  for  murder,  killed  a  fellow- 
convict.  He  was  indicted,  tried  and  sentenced  to  be  hung. 
On  appeal  he  urged,  among  others,  the  same  point  as  that 
here  taken.  It  was  overruled,  the  court  (p.  285)  saying : 
"  The  record  shows  that  the  plaintiff  in  error  is  a  convict  in 
the  State  penitentiary ;  that  he  committed  a  willful  murder 
in  Boone  county,  for  which  he  was  tried,  condemned  and 
sentenced  to  be  hung ;  and  that  upon  certain  representations 
his  punishment  was  commuted  by  the  governor  to  imprison- 
ment for  life  in  the  State  penitentiary.  After  he  was 
imprisoned  in  the  penitentiary,  he  killed  Lafayette  Burns,  a 
fellow-convict,  for  which  killing  he  was  indicted  in  the  Cole 
County  Circuit  Court,  and  upon  his  trial  was  found  guilty 
of  murder  in  the  first  degree,  and  he  lias  brought  his  case  to 
this  court  by  writ  of  error."  After  discussing  an  objection 
to  the  formation  of  the  grand  jury  which  found  the  indict- 
ment, the  court  (pp.  288-290)  proceeds :  "  The  next  question 
presented  for  our  inquiry  is  the  jurisdiction  of  the  court. 
The  ground  is  assumed  that,  because  the  plaintiff  in  error,  is 
an  inmate  of  the  penitentiary,  under  sentence  for  life,  he  is 
not  amenable  to  the  courts  of  the  country,  and  is  not  punish- 
able for  his  criminal  acts  while  in  actual  confinement.  This 


1872.]  OF  THE  STATE  OF  NEW  YORK.  353 

Haggerty  v.  The  People. 

argument  is  based  on  the  idea  that,  as  he  is  civilly  deadr  he 
is  not  responsible  for  anything  he  may  do  while  his  liability 
continues.  The  case  of  Exparte  Meyers  (44  Mo.,  279)  and 
Ex  parte  Brunding  (47  Mo.,  255)  have  no  bearing  on  the 
question  presented  here.  The  Meyers  case  was  decided  upon 
the  statute.  The  criminal  court  had  sentenced  the  defendant 
at  one  term,  and  then  held  him  in  custody  on  another 
indictment  and  tried  and  sentenced  him  at  a  subsequent 
term,  and  he  was  sent  up  and  imprisoned  on  both  sentences. 
"We  held  that,  under  the  provisions  of  the  statute,  the  last 
conviction  was  wrong  ;  that  the  law  required  that  when  there 
were  two  convictions  they  must  both  be  obtained  at  the  same 
term,  and  take  place  before  the  sentence  is  pronounced  in 
either  case.  In  Branding's  case  the  prisoner  was  confined  in 
the  penitentiary  and  escaped,  and  committed  another  crime 
while  out,  for  which  he  was  indicted,  tried,  convicted  and 
again  sent  to  prison.  When  he  was  placed  in  the  hands  of 
the  officers  they  recognized  him  and  compelled  him  to  serve 
out  his  unexpired  term,,and  then  held  him  to  serve  out  his 
last  sentence. 

"  This  we  held  that  they  had  a  right  to  do  ;  and  we  maintain 
the  doctrine  that  where  a  prisoner,  under  an  unexpired  sen- 
tence, commits  an  offence,  he  may  lawfully  be  convicted  thereof, 
and  that  the  succeeding  period  of  imprisonment  will  com- 
mence on  the  termination  of  the  period  next  preceding.  It 
will  be  perceived  that  both  convictions  were  of  the  same 
grade,  punishable  in  the  penitentiary,  and  were  for  defined 
and  limited  periods.  But  had  the  first  sentence  been  for  life, 
we  cannot  see  that  it  would  have  precluded  the  second  con- 
viction. 

"  The  executive  might  have  pardoned  the  prisoner  for  the 
first  offence,  and  in  that  case  he  would  be  immediately  held 
on  the  second  sentence.  But  the  question  here  presented  is 
a  wholly  different  one.  It  is  whether  a  criminal  confined  for 
one  crime,  who  commits  another  and  a  greater  crime,  to 
which  the  law  affixes  a  severer  penalty,  shall  escape  his 
merited  punishment.  To  say  that  he  has  an  entire  immunity 

LANSING — VOL.  VI.          45 


354  CASES  IN  THE  SUPREME  COURT         [Nov., 

Haggerty  v.  The  People. 

is  a  proposition  monstrous  in  itself.  Notwithstanding  a  man 
may  be  sentenced  and  imprisoned  for  a  criminal  offence,  he 
is  still  amenable  to  and  under  the  protection  of  the  law. 
Though  laboring  under  disabilities  as  to  his  civil  rights,  the 
law  assumes  over  him  a  control  and  guardianship.  He  is 
criminally  answerable  for  his  acts,  and  he  is  protected  from 
injury  or  violence.  The  law  regards  him  still  as  a  living 
human  being  and  as  a  responsible  agent.  The  statute  declares 
that  the  person  of  a  convict  sentenced  to  imprisonment  in 
the  penitentiary  is  under  the  protection  of  the  law,  and  any 
injury  to  his  person,  not  authorized  by  law,  shall  be  punishable 
in  the  same  manner  as  if  he  was  not  sentenced  or  convicted. 
("Wagn.  Stat.,  515,  §  23.)  The  provision  for  punishment 
applies  to  all  who  commit  the  offence  and  injury,  whether  it 
be  a  fellow-convict  or  any  other  person.  As  further  authority 
showing  that  the  statute  clearly  makes  convicts  responsible 
for  crimes  committed  while  serving  their  time  in  the  peni- 
tentiary, it  is  only  necessary  to  refer  to  the  article  on  the 
treatment  and  conduct  of  convicts.'  Section  14:  of  that  act 
provides  that  whenever  any  convcit  confined  in  the  peniten- 
tiary shall  be  considered  an  important  witness  in  behalf  of  the 
State,  upon  any  criminal  prosecution  against  any  other  con- 
vict, he  shall  be  brought  out  on  habeas  corpus  to  testify. 
Section  15  declares  that  such  convict  may  be  examined, 
and  shall  be  considered  a  competent  witness  against  any  fel- 
low-convict for  any  offence  committed  while  in  prison.  (Wagn. 
Stat.,  989,  §§  14,  15.)  These  provisions  all  plainly  show  that 
the  statute  holds  to  accountability  convicts  committing  crimes, 
in  the  same  manner  as,  other  persons.  And  where  a  prisoner 
is  under  sentence  for  one  crime,  it  is  no  bar  to  his  trial,  con- 
viction and  sentence  for  another  and  higher  grade  of  crime, 
committed  while  he  is  undergoing  imprisonment  for  the  first. 
This  was  always  the  doctrine  under  the  common  law.  "While 
the  courts  held  that  the  plea  autrefoit  attaint,  or  a  former 
attainder,  was  a  good  plea  in  bar,  whether  it  was  for  the  same 
or  any  other  felony,  yet  there  were  certain  well-recognized 
and  established  exceptions  to  the  rule,  among  which  were  that 


1872.]  OF  THE  STATE  OF  NEW  YORK.  355 

Haggerty  c.  The  People. 

an  attainder  in  felony  was  no  bar  to  an  indictment  for  trea- 
son, because  the  judgment  and  manner  of  death  was  different 
and  the  forfeiture  was  more  extensive.  Another  exception 
which  obtained  was  that  where  a  person  attainted  of  any 
felony  was  afterward  indicted  as  principal  in  another,  in  which 
there  was  also  accessories  prosecuted  at  the  same  time.  In 
that  case  it  was  held  that  the  plea  of  autrefoit  attaint  was  no 
bar,  but  that  he  should  be  compelled  to  take  his  trial  for  the 
sake  of  public  justice,  because  the  accessories  to  such  sesond 
felony  could  not  be  convicted  until  after  the  conviction  of  the 
principal.  Hence  follows  the  rule  that  a  plea  of  autrefoit 
attaint  was  never  good  but  when  a  second  trial  would  be 
superfluous.  (4  Sharsw.  Blackst., '  336.)  It  is  well  known 
that  many  of  the  convicts  are  employed  outside  the  prison 
walls,  in  the  public  streets.  Should  one  of  them,  while  thus 
employed,  kill  an  innocent  citizen  passing  by,  will  it  be  for  a 
moment  contended  that  he  could  not  be  punished  for  the  last 
great  offence  ?  The  denial  of  this  would  be  so  startling  as  to 
shock  the  moral  sense.  And  yet  the  person  of  the  convict  is 
just  as  much  under  the  protection  of  the  law  as  that  of  the 
purest  citizen,  and  he  is  alike  shielded  from  violence  and 
injury.  In  any  aspect  or  view  of  the  case  I  can  see  nothing 
to  prevent  a  convict  in  the  penitentiary  from  being  prose- 
cuted or  punished  for  the  commission  of  a  crime  while  he 
is  serving  out  his  sentence.  I  think,  therefore,  that  the  court 
had  full  jurisdiction,  and  proceeded  regularly." 

In  Dolarfs  Case  (101  Mass.,  219),  Dolan  escaped  from  State 
prison,  was  tried  for  the  escape  before  being  returned,  and 
sentenced  for  one  year,  to  commence  at  the  expiration  of 
the  first  sentence.  The  second  trial  and  conviction  was  held 
legal 

The  proceeding  to  return  Haggerty  under  his  former  sen- 
tence was  not  a  trial  for  the  offence  for  which  he  was  liable 
to  be  imprisoned  under  that  sentence.  (1  Bish.  Grim.  Proc. 
2d  ed.,  §§  1208-1212.) 

In  the  King  v.  Okey  and  others  (1  Levinz,  61),  it  is  said, 
"  whereupon  they  pleaded  that  they  were  not  the  persons, 


356  CASES  IN  THE  SUPREME  COURT      [March, 

Bailey  v.  Southwick. 

and  issue  was  taken  thereon  and  a  jury  returned  immediately 
to  try  it,  which  was  done,  and  they  were  not  permitted  to 
challenge  peremptorily,  for  they  are  not  now  to  be  tried  for 
the  treason,  but  only  of  the  identity  of  persons."  In  a  note 
to  Sir  Charles  Ratcliffds  Case,  in  18  Howell,  State  Trials, 
438,  giving  the  case  from  the  records  of  the  court,  it  is  said 
the  accused  was  denied  a  peremptory  challenge ;  "  this 
being  a  proceeding  very  different  from  the  trial  upon  a  not 
guilty,  in  an  original  prosecution  on  a  charge  of  high  treason 
or  other  crime,  the  identity  of  the  person  being  the  single 
fact  to  be  inquired  of,  and  a  case  in  which  the  crown  had  a 
right  by  law  to  proceed  instanter."  Indeed,  the  proceeding 
was  not  a  trial  for  any  crime,  nor  was  defendant  sentenced 
for  any.  The  trial  took  place  and  the  sentence  was  imposed 
in  1868.  Haggerty  not  having  suffered  the  imprisonment 
imposed,  the  court  was  simply  asked  to  enforce  its  former 
judgment. 

Present — MILLER,  P.  J,  j  P.  POTTER  and  PARKER,  JJ. 

The  court,  after  consultation,  without  delivering  a  written 
opinion,  affirmed  the  judgment  of  the  Court  of  Sessions. 


WILLIAM  H.  BAILEY,  Appellant,  v.  JULIA  C.  SOUTHWICK  and 
others,  Respondents. 

(GENERAL  TEKM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

Certain  real  estate  was  devised  to  J.  C.  S.,  a  daughter  of  testator,  "subject 
to  the  following  condition  and  contingency :  That  said  gift  is  made  and 
given  to  her  and  her  direct  lineal  descendants,  should  she  have  any,  in 
fee  simple  absolutely ;  but  in  the  event  that  she  shall  die,  leaving  no 
children,  or  descendants  of  any  children,  then  *  *  *  to  the  children 
of  the  survivor  or  survivors  of  my  children  (naming  them)  equally,  share 
and  share  alike,  &c."  J.  C.  8.  deeded  the  premises  to  plaintiff  in  fee,  who, 
having  been  in  possession  more  than  three  years,  brought  this  action  to 
obtain  a  construction  of  the  will  as  to  the  title  said  J.  C.  S.  obtained 
under  such  devise,  making  J.  C.  S.  and  her  children  (some  of  whom 
were  infants)  parties  defendants,  and  alleging  that  her  estate  waa  a  fee 


1872.]  OF  THE  STATE  OF  NEW  YORK.  357 

Bailey  t>.  Southwick. 

simple  absolute.  J.  C.  8.  did  not  answer  the  complaint.  The  adult 
children  answered,  setting  up  that  they,  under  said  will,  with  their  bro- 
thers and  sisters,  were  seized  of  an  estate  in  fee  simple  subject  to  the  life 
estate  of  their  mother  (J.  C.  S.),  and  asking  that  the  court  so  decree.  The 
infants  by  their  guardian  put  in  the  usual  general  answer,  submitting 
their  rights  to  the  court,  and  also  making  the  same  claim  as  the  adults  in 
relation  to  their'  rights  under  the  will.  Held,  that  the  complaint  was 
properly  dismissed.  Such  action  cannot  be  maintained  in  equity,  either 
as  a  bill  quia  timet  or  in  the  nature  of  guia  ttmet,  nor  as  a  bill  of  peace, 
nor  at  law  under  the  statute,  the  complaint  containing  no  allegation  that 
the  defendants  unjustly  withheld  possession  of  the  premises  from  plain- 
tiff, but  containing  allegations  contradictory  thereto  as  to  the  defendant 
J.  C.  S.,  and  showing  the  fact  of  the  infancy  of  others  of  the  defendants. 

APPEAL  by  plaintiff  from  a  judgment  dismissing  plaintiff 's 
complaint  at  the  Albany  Circuit  and  Special  Term,  Decem- 
ber, 1870. 

The  plaintiff  brought  an  action,  alleging  in  his  complaint 
that  one  Jesse  Buel  died  October  1,  1839,  seized  and  pos- 
sessed of  a  large  quantity  of  real  estate,  having  made  a  last 
will  and  testament,  which,  on  the  21st  day  of  October,  1839, 
was  admitted  to  probate  by  the  surrogate  of  Albany  county. 
That  among  other  children  the  said  Jesse  left  him  surviving 
a  daughter  Julia,  who  afterward  married  one  Henry  C.  South- 
wick,  now  deceased,  and  that  the  defendants  other  than  said 
Julia  are  her  children. 

By  the  will  the  testator  deviled  certain  real  estate  to  his 
daughter  Julia.  The  devise  and  its  conditions  are  set  forth  in 
the  opinion. 

The  complaint  further  alleged  that  said  Julia  C.,  who  had, 
.nore  than  a  year  prior  to  May  1,  1863,  been  in  possession  of 
the  premises  devised  to  her,  on  that  day,  with  her  husband, 
conveyed  them  to  plaintiff,  with  covenants  of  warranty  and 
quiet  possession,  in  fee,  for  a  good  and  valuable  considera- 
tion ;  that  such  conveyance  was  duly  and  properly  acknow- 
ledged, and  on  the  llth  of  May,  1863,  recorded  in  the  Albany 
county  clerk's  office ;  "  that  the  plaintiff  is  now,  and  has  been 
for  the  three  years  preceding  the  commencement  of  this  action, 
in  the  actual  possession  of  said  premises." 

The  complaint  alleged  that  the  said  Julia  and  the  defend 


358  CASES  IN  THE  SUPREME  COURT        [March, 

Bailey  v.  Southwick. 

ant  Susan  B.  Briggs  are  adults,  and  the  other  defendants  are 
minors,  but,  in  fact,  as  appeared  by  his  answer,  the  defendant 
Frank  B.  Southwick  was  also  an  adult. 

The  complaint  further  alleged  that  the  defendants  claimed 
that,  under  the  will  of  Jesse  Buel,  the  fee  simple  was 
not  vested  in  his  daughter,  Julia,  the  plaintiff's  grantor, 
and  the  mother  of  the  other  defendants,  but  that  thereby  she 
was  given  only  a  life  estate,  and  that  her  children,  the  other 
defendants,  as  her  heirs-at-law,  were  vested  with  the  fee,  sub- 
ject to  her  life  estate.  That  the  plaintiff  claimed  that  under 
and  by  said  will  the  premises  were  devised  to  said  Julia  in 
fee  absolute.  That  the  plaintiff  and  defendants,  other  than 
Julia,  made  contradictory  claims  as  to  the  effect  of  the  devise 
to  Julia,  plaintiff  claiming  that,  by  his  deed,  he  took  a  fee, 
and  the  defendants,  other  than  Julia,  that  he  only  took  an 
estate  during  Julia's  life,  and  that  they  have  the  fee.  That 
plaintiff  was  disturbed  in  his  title  by  the  claim  of  said  defend- 
ants, and  that  thereby  his  title  was  under  a  cloud,  and  sub- 
ject to  be  disturbed  by  said  defendants  on  the  death  of  their 
mother.  That  plaintiff  desired  to  improve  the  premises  by 
erecting  permament  buildings  thereon,  and  being  in  doubt  as 
to  what  title  he  took  under  the  deed  to  him  by  Julia,  desired 
a  legal  and  judicial  determination  and  construction  of  the 
intent  of  the  testator  in  the  devise  to  Julia. 

The  plaintiff  demanded  judgment  for  "  a  construction  of  the 
clause,  and  conditions  and  contingencies  thereto,  in  said  will 
set  forth,  as  to  the  title  said  Julia  C.  Southwick  obtained  to 
the  premises  above  set  forth,  to  the  end  that  the  conveyance 
from  her  to  plaintiff  may  be  established,  in  law  and  equity,  as 
a  conveyance  or  grant  of  the  premises  aforesaid  to  plaintiff  by 
said  Julia  C.  Southwick,  in  fee  absolute,  by  a  construction  of 
said  will  of  said  Jesse  Buel,  deceased,  as  a  devise  to  said  Julia 
C.  Southwick,  in  fee  simple  absolute,  that  plaintiff's  title  to 
said  premises  in  fee  absolute  may  be  quieted  and  established, 
or  for  such  other  or  further  judgment  or  decree  in  the  premi- 
ses as  to  the  court  may  seem  meet  and  proper." 


1872.]  OF  THE  STATE  OF  NEW  YORK.  359 

Bailey  r>.  Southwick. 

The  adult  children,  Frank  B.  Southwick  and  Susan  B. 
Briggs,  answered : 

1st.  Denying  that,  under  the  will  of  Jesse  Buel,  their 
mother  took  a  fee. 

2d.  Affirmatively  claiming  "  that  under  the  will  of  their 
said  grandfather,  Jesse  Buel,  deceased,  they  are  entitled,'  in 
common  with  their  brothers  and  sisters,  to  the  fee  simple  abso- 
lute, of  the  premises  described  in  the  complaint,  subject  to  the 
life-estate  of  their  mother,  Julia  C.  Southwick.." 

3d.  They  pray  that  the  court  may  so  decree. 

4rth.  Ask  for  general  relief. 

The  infant  defendants,  Mary,  Howard  and  Annie  South- 
wick, answer  by  their  guardian  : 

1st.  The  usual  answer  of  infants,  submitting  their  rights  to 
the  protection  of  the  court. 

2d.  The  same  defence  as  their  adult  brother  and  sister. 

The  cause  came  on  for  trial  at  the  Albany  Circuit  and  Spe- 
cial Term,  in  December,  1870,  neither  party  requiring  a  jury. 

The  plaintiff's  counsel  opened  by  reading  the  pleadings. 
The  defendant's  counsel  (other  than  for  Julia  C.  Southwick, 
who  did  not  appear  in  the  case)  thereupon  moved  to  dismiss 
the  complaint,  upon  the  grounds, 

1.  That  the  court  has  no  jurisdiction  of  the  subject  of  the 
action. 

2.  That  the  complaint  does  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action. 

Plaintiff's  counsel  claimed  that,  inasmuch  as  the  defendants 
other  than  Julia  C.  had  answered,  setting  up  a  claim  of  title, 
which  plaintiff  claimed  was  unfounded,  an  allegation  in  the 
complaint  that  the  defendants  unjustly  claimed  title  to  such 
premises  was  unnecessary  to  entitle  plaintiff  to  maintain  the 
action,  even  under  the  statutes.  The  court  thought  other- 
wise. 

The  plaintiff's  counsel  thereupon  asked  the  court  that 
plaintiff  be  allowed  to  amend  the  complaint  by  inserting  an 
allegation  therein  as  follows:  "  That  the  defendants  unjustly 
claim  title  to  such  premises ;"  and  also  to  amend  the  prayer 


360  CASES  IN  THE  SUPREME  COURT       [March, 

Bailey  n.  Southwick. 

for  relief  by  inserting  "  that  defendants,  and  all  persons 
claiming  under  them,  be  forever  barred  from  any  claim  of 
reversion,  or  freehold,  or  remainder  of  the  premises  described 
in  the  complaint." 

The  court  refused  to  allow  such  amendment,  and  plaintiff 
excepted. 

The  plaintiff  thereupon  moved  to  make  the  same  amend- 
ments as  against  the  adult  defendants.  The  court  denied -the 
motion,  and  refused  to  allow  such  amendment,  and  plaintiff 
excepted. 

Plaintiff  claimed  to  maintain  the  action, 

1.  Under  the  statutes. 

2.  As  a  bill  to  quiet  title,  in  the  nature  of  a  bill  quia  timet. 

3.  As  a  bill  to  establish  the  will  of  Jesse  Buel,  so  far  as  it 
relates  to  this  real  estate. 

4.  Upon  the  facts  set  out  in  the  complaint,  and  that  plain- 
tiff should  have  such  relief  as  he  may  be  entitled  to  upon  such 
facts. 

Plaintiff  offered  to  prove  the  facts  alleged  and  set  out  in 
the  complaint. 

The  court  ruled  and  decided  that  the  action  could  not  be 
maintained;  to  which  plaintiff  excepted. 

Counsel  for  said  defendants  pressed  the  motion  to  dismiss 
the  complaint,  upon  the  grounds  before  stated,  and  the  court 
granted  the  motion,  to  which  plaintiff  excepted ;  and  he 
separately  excepted  to  the  dismissal  of  the  complaint,  as 
against  the  adult  defendants. 

The  other  material  facts  will  sufficiently  appear  in  the 
opinion. 

N.  C.  Mbak,  for  the  plaintiff. 

Burton  N.  Harrison,  for  the  defendants. 

Present — MILLER,  P.  J. ;  P.  POTTER  and  PARKER,  JJ. 

P.  POTTER,  J.  The  complaint  in  this  action,  in  substance,  is 
to  obtain  legal  and  judicial  determination  and  construction 


1872.]  OF  THE  STATE  OF  NEW  YORK.  361 

• 

Bailey  v.  Southwick. 

of  the  last  will  of  the  late  Jesse  Buel,  of  Albany,  as  it  affects 
certain  real  estate  in  said  city.  The  testator  devised  to  his 
two  sons,  Charles  and  William  P.,  and  to  his  daughter,  Julia 
C.,  who  is  the  defendant  (Julia  C.  Southwick),  each,  certain 
real  estate ;  and  to  the  latter,  Julia  C.,  the  premises  in  ques- 
tion, as  follows : 

"  To  my  daughter,  Julia  C.  Bnell,  I  give,  devise  and 
bequeath,  subject  to  the  condition  and  contingency  hereafter 
mentioned,  four  lots  on  Washington  street,  in  the  city  of 
Albany,  being  lots  Nos.  1,  3,  5  and  7,  together  with  all  the 
buildings,  tenements  and  hereditaments  belonging  and  apper- 
taining to  each  and  every  of  them. 

"  All  the  said  several  gifts  and  devises  before  mentioned  to 
my  said  children,  Charles,  Julia  C.  and  William  P.,  are  made 
upon  express  condition,  and  subject  to  the  condition  next 
following,  that  is  to  say,  that  the  gift  or  devise  to  each  is 
made  and  given  to  each,  and  his,  her  or  their  direct  lineal 
descendants,  should  he,  she  or  they  have  any,  in  fee  simple 
absolutely;  but  in  the  event  that  either  the  said  Charles, 
Julia  C.  and  William  P.  shall  die  leaving  no  children,  or 
descendants  of  any  children,  then  and  in  such  case  I  hereby 
give,  devise  and  bequeath  the  said  several  gifts,  devises  and 
bequests,  which  belonged  to  him,  her  or  them,  to  the  children 
of  the  survivors  or  survivor  of  them  the  said  Charles,  Julia 
C.  and  William  P.  equally,  share  and  share  alike ;  the  direct 
lineal  descendants,  if  any,  of  such  of  my  said  three  children, 
Charles,  Julia  C.  and  William  P.,  as  may  then  be  deceased, 
to  be  entitled  to  the  same  share  which  the  child  or  children 
so  deceased  would  have  been  entitled  to  if  living." 

The  complaint  alleges  that  in  May,  1863,  Julia  C.,  the 
defendant,  who  had  then  been  in  possession  more  than  one 
year,  conveyed  the  premises  to  the  plaintiff,  with  covenants 
of  warranty  and  quiet  possession,  in  fee,  and  for  a  good  and 
valuable  consideration  ;  and  that  the  plaintiff  is,  and  for  three 
years  before  the  commencement  of  the  action  had  been,  in  the 
actual  possession  of  the  premises. 

All  the  defendants,  other  than  the  said  Julia  C.,  are  her 
LANSLKG — VOL.  VL  46 


362 


Bailey  v.  Southwick. 


children.  Susan  B.  Briggs  is  married  ;  she  and  Frank  B. 
Southwick  are  of  full  age,  and  united  in  an  answer  merely 
denying  that  their  mother,  Julia  C.,  held  in  fee  simple  abso- 
lute, but  claiming  that  they,  in  common  with  their  other 
brothers  and  sisters,  held  the  said  premises  in  fee  absolute, 
subject  to  the  life  estate  of  their  mother;  and  the  infant 
defendants  answered  by  their  guardian,  submitting  their  inte- 
rests to  the  court,  but  claiming  such  interests  as  the  adults 
claim.  The  defendant,  Julia  C.  Southwick,  put  in  no  answer. 

1st.  The  plaintiff's  action  being  dismissed,  it  lies  with  him 
to  show  a  legal  right  to  maintain  it ;  and  this  involves  the 
necessity  of  showing  whether  it  is  an  action  in  equity  or  at 
law.  It  cannot  be  both  ;  for  though  the  Supreme  Court  pos- 
sesses all  the  powers,  and  exercises  the  functions  both  of  the 
former  Supreme  Court  and  the  former  Court  of  Chancery, 
and  may  entertain  an  equitable  defence  to  a  legal  action,  it 
has  not  acquired  the  right,  by  blending  the  two  tribunals,  so 
as  to  administer  a  legal  remedy  in  an  action  of  purely  equita- 
ble cognizance,  nor  equitable  relief  in  an  action  of  strictly 
legal  cognizance.  The  administration  of  each  tribunal  is  now, 
as  it  was  before,  as  perfectly  distinct  as  it  was  when  remedies 
were  to  be  sought  in  different  courts.  If  the  plaintiff's  form 
of  action  is  in  equity,  he  must  maintain  it  upon  equitable 
grounds,  or  fail,  even  though  he  may  prove  a  good  action  at 
law.  (Mann  v.  Fairchild,  2  Keyes  R.,  Ill,  112.)  And  if 
he  proceed  in  equity  he  must  also  show  that  a  perfect  remedy 
cannot  be  obtained  at  law.  (Hey wood  v.  The  City  of  Buf- 
falo, 14:  N".  Y.,  540,  per  JOHNSON,  J. ;  Onderdonk  v.  Mott, 
34;  Barb.,  113,  per  EMOTT,  J.) 

I  have  failed  to  discover  any  grounds  of  an  equitable 
nature  in  the  allegations  of  the  complaint.  The  plaintiff  is 
the  assignee  or  granfee  of  a  devisee  in  the  will;  and  the  com- 
plaint, so  far  as  it  calls  for  judicial  construction  of  the  Will, 
comes  short  of  showing  it  to  be  a  case  within  the  limits  of 
equity  jurisdiction.  He  does  not  sue  as  a  cestui  que  trust 
executor,  administrator  or  trustee.  The  estate  in  question  is 
a  mere  legal  estate,  easily  determinable  at  law  as  to  quantity 


1872.]  OF  THE  STATE  OF  NEW  YORK. 

Bailey  v.  Southwick. 

and  character.     No  possible  question  can  arise  in  this  case 
between  the  parties  as  to  the  validity  of  the  bequests  of  the 
•will  of  the  testator.     The  rule  laid  down  by  the  chancellor  in 
Sowers  v.  Smith  (10  Paige,  193)  has  never  been  overruled 
or  shaken  as  authority,  to  my  knowledge,  but  has  been  sus- 
tained by  the  case  of  Onderdonk  v.  Matt  (supra,  p.  111). 
The   chancellor  says:     "I  am  not   aware   of  any   case  in 
which  the  heir-at-law  of  a  testator,  or  a  devisee,  who  claims 
a  mere  legal  estate  in  the  real  property  where  there  was  no 
trust,  has  been  allowed  to  come  into  a  court  of  equity  for  the 
mere  purpose  of  obtaining  judicial  construction  of  the  pro- 
visions of  the  will.     On  the  contrary,  the  decision  of  such 
legal  question,  belongs  exclusively  to  the  courts  of  law,  except 
where  they  arise  incidentally  (in  this  court)  in  the  exercise 
of  its  legitimate  powers ;   or,  where  the  court  has  obtained 
jurisdiction  of  the  case  for  some  other  purpose."    The  devisee 
in  the  will  has  put  in  no  answer.     She  has  no  estate  to  be 
affected  in  the  case.     What  she  had  she  has  conveyed  to  the 
plaintiff.     Three  of  the  defendants  are  infants  and  incapable 
of  admitting  jurisdiction  or  of  making  unjust  claim  of  title, 
and   they  can  ask  no  partition    or   other   relief  on    their 
behalf,  nor  could  partition  be  granted  them  upon  the  com- 
plaint and  answers  when  put  in.     Their  estate,  whatever  it 
is,  is  entirely  contingent,  if  they  have  any.     The  plaintiff's 
grantor,  had  she  remained  in  quiet  and  peaceable  possession 
of  her  estate,   could  not  have   brought    this   action.     Her 
grantee  has  no  better  rights  while  he  remains  undisturbed. 
The  complaint  does,  indeed,  ask,  as  a  part  of  the  relief  to 
be  granted,  to  have  the  will  established,  but  that  was  done 
by  the  decree  of  probate,  long  before ;  no  appeal  has  been 
shown  to  have  been  taken  or  is  pending  from  that  decree ; 
a  judgment  in  this  court  can  neither  reverse  that  decree  or 
better  establish  the  will. 

It  is  further  claimed  by  the  plaintiff  that  the  complaint  can 
be  sustained  as  a  bill  of  peace  or  of  quia  timet.  A  bill  of 
peace  is  most  generally  brought  after  suit  instituted,  and  gene- 
rally to  try  a  right  that  has  been  tried  at  law  and  seeks  an 


364  CASES  IN  THE  SUPREME  COURT        [March, 

Bailey  «.  Southwick. 

injunction,  though  there  are  a  few  cases  where  they  may  be 
brought  before  the  party  is  actually  prosecuted.  The  plain- 
tiff in  this  case  has  not  been  prosecuted.  The  cases  where 
bills  of  peace  can  be  maintained  are  principally  limited  to 
cases  of  injunctions  to  stay  proceedings  at  law,  to  restrain 
vexatious  suits,  to  restrain  the  alienation  of  property,  to 
restrain  waste,  to  restrain  trespasses,  and  to  prevent  irrepar- 
able mischiefs.  The  object  generally  is  to  establish  and  per- 
petuate a  right  which  the  party  claims,  and  which,  from  its 
nature,  may  be  controverted  by  different  persons  at  different 
times,  and  by  different  actions,  or  it  may  lie  where  separate 
attempts  have  been  unsuccessfully  made  to  overthrow  the 
same  right,  and  where  justice  requires  that  the  party  should 
be  quieted  in  the  right.  Its  obvious  design  is  to  procure 
repose  from  perpetual  litigation,  and  it  is  therefore  justly 
called  a  bill  of  peace.  (Story's  Eq.  Jur.,  §§  852-873,  958.) 
The  complaint  in  this  action,  I  think,  presents  no  case  that  is 
brought  within  the  general  objects  of  a  bill  of  peace. 

Bills  of  quia  timet  are  also  known  in  the  practice  of  equity 
as  writs  of  prevention,  and  are  used  to  accomplish  the  ends  of 
precautionary  justice.  The  name  of  this  bill  is  taken  from 
the  expression  of  the  party's  fears  in  the  application,  lie 
fears  some  future  probable  injury  to  his  rights  or  interests, 
and  not  because  an  injury  has  already  occurred  which  requires 
relief.  Its  object  is  to  secure  the  preservation  of  property  to 
its  appropriate  uses  where  there  is  future  or  contingent  danger 
of  its  being  diminished  or  converted  to  other  uses,  or  lost  by 
gross  neglect,  without  the  interposition  of  the  court.  It  gene- 
rally relates  to  personal  property,  and  is  applicable  as  against 
executors  and  administrators,  trustees  and  corporations,  where 
there  is  danger  of  devastation,  waste  or  collusion,  by  which 
estates  may  be  diminished,  and  where  the  appointment  of  a 
receiver  is  necessary.  The  case  before  us  presents  none  of 
the  elements  which  show  the  necessity  of  the  bill  of  quia 
timet.  The  plaintiffs  rights  are  strictly  legal  rights  and  well 
defined  in  law.  Though  subject,  perhaps,  to  future  contin- 
gencies, equity  cannot  change  them.  lie  has,  therefore,  no 


1872.]  OF  THE  STATE  OF  NEW  YORK.  365 

Bailey  n.  Southwick. 

reasonable  fear  of  any  future  probable  injury  to  his  rights  and 
interests.  His  evidence  of  title  is  matter  of  record,  and  he  is 
in  no  danger  of  losing  it  by  any  act  of  any  adverse  party.  He 
can  suffer  nothing  by  delay  in  the  prosecution  of  his  claims, 
and  he  is  now  in  the  enjoyment  of  the  quiet  and  peaceable 
possession  of  the  estate.  The  defendants'  possible  or  pro- 
bable remainder-men  of  the  estate,  as  the  plaintiff  seems  to 
suppose,  have  an  equal  right  with  the  plaintiff  to  have  their 
estates,  if  they  have  any,  even  though  contingent,  protected; 
and  to  demand  the  preventive  interposition  of  the  court 
against  a  premature  disposition,  or  a  change. of  its  legal  per- 
manent character ;  and  equity  has  no  right  to  interfere  with 
it.  The  law  of  mutuality  or  reciprocal  obligation  is  acknow- 
ledged in  equity.  It  is  even  unjust  and  against  the  princi- 
ples of  natural  equity  that  a  man,  and  especially  that  infants, 
should  be  compelled,  against  their  will,  to  have  a  change 
made  in  the  character  of  their  estate,  or  to  have  its  security 
disturbed,  while  they  are  remaining  in  quiet  expectation. 
This  -is  not  a  case  where  the  plaintiff  unexpectedly  and  with- 
out his  fault  is  placed  in  a  condition  that  he  could  not  know 
what  in  judgment  of  law  it  is  his  duty  to  do,  and  has,  there- 
fore, a  right  to  call  the  aid  of  the  court  to  his  relief.  Were 
it  so,  that  might  be  good  cause  to  call  the  interposition  of  a 
court  of  equity.  The  plaintiff  purchased  a  legal  estate,  and, 
in  contemplation  of  law,  it  is  to  be  presumed  he  knew  then, 
as  well  as  now,  its  character,  extent  and  contingencies.  His 
desire  to  improve  this  estate,  however  commendable,  and  how 
much  soever  it  would  tend  to  the  public  interest  and  conve- 
nience, cannot  be  considered  by  the  court  of  equity. 

The  plaintiff  also  claims  that  a  bill  in  the  nature  of  quia 
timet  can  be  sustained.  This  is  not  a  distinct,  or  an  admitted, 
or  very  definite  head  of  equity  jurisdiction,  nor  is  it  easily 
distinguished  by  established  rules  from  the  others  which  we 
have  examined.  It  is  rather  an  invention  of  the  court  of 
equity,  adopted  for  extreme  cases,  in  the  desire  to  commend 
their  system,  so  that  there  shall  always  be  a  remedy  for  the 
enforcement  of  rights  and  redress  of  wrongs ;  and  to  vary  its 


366  CASES  IN  THE  SUPREME  COURT      [March, 

Bailey  v.  Southwick. 

adjustments  and  proportions,  so  as  to  meet  the  form  and 
pressure  of  each  particular  case,  that  a  bill  in  the  nature  of 
quia  timet  was  invented  and  sustained.  It  is  a  remedy  of  so 
infrequent  occurrence  and  mention  in  the  books  of  practice 
that  it  is  hardly  safe  to  extend  it  or  proper  to  give  its  appli- 
cation to  a  particular  case  upon  any  well  settled  authority.  I 
am  satisfied  that  such  a  bill  does  not  apply  to  the  case 
before  us. 

If,  then,  this  action  can  be  maintained,  it  must  be  an  action 
at  law,  and  can  only  be  maintained  there  by  bringing  it  within 
the  provisions  of  the  act  entitled  "  proceedings  to  compel  the 
determination  of  claims  to  real  property  in  certain  cases." 
(2  R.  S.,  312,  313 ;  Edm.  ed.,  321,  322,  &c.)  This  is  entirely  a 
statutory  proceeding,  and  is  not  governed  by  the  principles 
of  the  common  law.  It  is  a  proceeding  not  known  to  the 
common  law.  To  give  the  court  jurisdiction  of  the  case,  the 
proceeding  must  be  brought  within  the  statute  direction,  and 
come  within  the  case  for  which  the  statute  provides;  and 
although  the  statute  has  been  so  amended  as  to  permit  the 
action  to  be  prosecuted  under  the  provisions  of  the  Code,  the 
special  statute  character  of  the  action  has  not  been  changed. 

The  decision  of  this  case  below  was  upon  the  pleadings 
without  proof,  and  we  may  therefore  regard  the  questions  here 
that  may  be  raised,  upon  review,  to  be  substantially  as  if  it 
was  a  demurrer,  which  is  a  test  of  the  character  and  suffi- 
ciency of  the  pleadings.  On  the  trial  at  the  circuit  it  differs 
from  a  demurrer  only  in  that  perhaps  the  judge  possessed  the 
power  of  exercising  a  discretion  as  to  amendments.  (Ham- 
mond v.  Tillotson,  18  Barb.,  332 ;  Onderdonk  v.  JNott,  34 
Barb.,  106.)  If  that  be  so,  this  court  would  not  review  that 
discretion.  We  must,  therefore,  look  at  the  case  to  see  if  the 
complaint  stated  sufficient  facts  to  give  the  court  jurisdiction 
of  the  subject  of  the  action,  and  whether  the  complaint  did 
state  facts  sufficient  to  constitute  a  cause  of  action. 

Without  enumerating  all  the  provisions  of  this  statute  that 
are  indispensable  in  order  to  give  the  court  jurisdiction  of  the 
subject,  and  which  of  course  must  be  stated  in  the  complaint, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  367 

Bailey  v.  Southwick. 

it  will  be  sufficient  to  sustain  the  ruling  below  if  matter  mate- 
rial to  be  stated  is  found  omitted, ,  and  equally  so  if  matters 
stated  show  that  the  case  does  not  come  within  the  provisions 
of  the  statute,  for  the  statute  applies  only  to  "^certain 
cases." 

Assuming  that  the  complaint  in  this  case  is  made  a  substi- 
tute for  or  an  equivalent  of  the  notice  required  by  the  second 
section  of  this  statute,  the  fourth  subdivision  of  the  second 
section  requires  that  this  notice  shall  state  that  the  person  to 
whom  -it  is  directed  unjustly  claims  title  to  such  premises. 
The  defendants  can  make  no  such  claim  during  the  life  of 
Julia  C.  Southwick.  No  such  allegation  is  found  in  the  com- 
plaint. Had  it  been  found  there,  other  allegations  in  the 
complaint  would,  of  themselves,  have  been  the  direct  negative 
of  a  distinct  fact  therein  alleged  as  to  Julia  C.  Soutliwick,  one 
of  the  defendants,  to  wit :  That  she  had  previously  conveyed 
in  fee,  with  covenants  of  warranty  and  quiet  possession,  to 
the  plaintiff,  all  her  interest  in  the  premises.  As  to  her,  the 
plaintiff  in  his  complaint  subsequently  by  implication  admits 
that  she  cannot  disturb  him. 

By  the  third  section  of  this  act  infants  are  excluded  from 
being  made  parties  to  the  proceeding.  By  the  complaint  the 
plaintiff  alleges  that  four  of  the  defendants  are  infants  under 
the  age  of  twenty-one  years.  No  amendment  could  have 
cured  this  defect.  Besides,  infants  could  not  have  been 
charged  with  unjustly  claiming  title.  The  dismissing  of  the 
complaint  as  to  the  infants  and  as  to  Julia  C.  Southwick  are 
clearly  and  sufficiently  sustained  upon  this  ground.  An 
adjudication  upon  the  legal  rights  of  one  or  more  of  the 
tenants  in  common  or  joint  tenants  of  the  contingent  estate, 
if  the  complaint  had  been  otherwise  sufficient  as  to  them  or 
had  been  amendable  as  against  them,  would  not  have  been 
wise,  discreet  or  just,  would  not  have  aided  the  plaintiff  in  his 
designs  of  improvement,  and  would  have  opened  a  door  for 
renewed  litigation  as  the  infants  respectively  arrived  at  age. 
Upon  either  view  I  think  the  ruling  was  right.  If  I  am  right 


368  CASES  IN  THE  SUPREME  COURT        [April, 


Collins  v.  Collins. 


in  these  views,  it  is  unnecessary  to  examine  various  other 
technical  grounds  of  objection  made  to  the  complaint.     I 
think  the  judgment  is  right  and  should  be  affirmed  with  costs. 
Judgment  affirmed. 


MAEIA  A.    COLLINS,   Appellant,   v.   LORENZO  D.   COLLINS, 
Respondent. 

(GENERAL  TERM,  THIKD  DEPARTMENT,  APRIL,  1871.) 

Plaintiff,  a  married  woman,  was  the  owner  of  certain  real  estate,  a  large 
part  of  the  purchase-money  of  which  had  been  furnished  by  her  hus- 
band, and  he  had  also  expended  large  sums  for  its  improvement  and 
repair.  It  was  also  heavily  incumbered.  The  husband  died,  leaving 
plaintiff  his  widow,  and  children  by  a  former  marriage,  and  having  upon 
his  death-bed  requested  the  defendant  to  take  said  property  and  do  the 
best  he  could  therewith  for  his  wife  and  children,  and  requested  him  to 
tell  plaintiff  that  he  wished  her  to  convey  the  property  to  defendant,  that 
he  might  manage  it  for  her  benefit  and  that  of  his  children.  After  the 
husband's  death,  defendant  informed  plaintiff  of  the  request  made  by 
him,  and  defendant  conveyed  the  property  to  plaintiff,  the  only  con- 
sideration of  the  conveyance  being  her  husband's  request  and  the  verbal 
and  implied  promise  of  defendant  that  he  would  conform  with  such 
request.  After  such  conveyance,  defendant  expended  large  sums  in  dis- 
charging liens  and  incumbrances  upon  the*  property,  existing  at  the  time 
of  the  conveyance,  and  in  paying  for  repairs  and  improvements  thereto, 
commenced  in  the  husband's  lifetime. 

Held,  in  an  action  brought  to  obtain  a  reconveyance  of  the  property,  that 
plaintiff  was  not  entitled  to  such  relief,  and  yet  that  a  judgment  rendered 
for  the  defendant  was  erroneous  and  must  be  reversed  and  a  new  trial 
ordered;  that  defendant  was  entitled  to  be  reimbursed  the  amounts 
expended  by  him  under  the  conveyance  in  good  faith,  in  paying  liens  and 
incumbrances,  and  in  making  repairs,  and  to  be  subrogated  to  the  rights 
of  creditors  of  the  husband,  whose  debts  he  had  paid,  and  to  a  reasonable 
compensation  for  his  services ;  that  he  should  also  be  held  to  account  for 
the  rents  and  profits  received  by  him ;  that  the  respective  rights  of  the 
parties  interested,  including  any  question  as  to  the  widow's  right  of 
dower,  should  be  ascertained  upon  the  new  trial  and  settled  upon  equi- 
table principles. 

Held,  further,  that  the  children  of  the  intestate  had  interests  in  the  estate, 
the  rights  to  and  the  extent  of  which  could  only  be  determined  by  their 
being  made  parties  to  the  action,  and  that  they  should  therefore  be 
brought  into  the  action  as  such  parties. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  369 


Collins  v.  Collins. 


THIS  case  comes  here  on  appeal  by  the  plaintiff  from  a  judg- 
ment against  her,  entered  on  a  report  of  a  referee. 

The  action  was  brought  to  obtain  a  reconveyance  of  certain 
land,  or  payment  therefor,  which  had  been  conveyed  by  plain- 
tiff to  defendant. 

The  facts  are  substantially  as  set  forth  in  the  report  of  the 
referee  to  whom  the  case  was  referred,  and  are  as  follows : 

That  on  and  prior  to  the  16th  day  of  April,  1866,  the 
plaintiff  was  the  owner  of  the  real  estate  described  in  the 
complaint,  called  the  Exchange  Hotel  or  Collins  House  pro- 
perty, and  also  a  large  amount  of  personal  property  contained 
therein  and  connected  and  purchased  therewith.  That  Isaac 
Collins,  the  husband  of  the  plaintiff,  had  furnished  a  large 
part  of  the  purchase-money  of  said  real  estate.  That  said 
Isaac  Collins  died  on  the  13th  day  of  April,  1866.  That 
upon  his  death-bed,  said  Isaac  Collins  requested  the  defend- 
ant to  take  charge  of  his  business  and  of  said  property  after 
his  death,  and  do  the  best  he  could  therewith  for  his  wife  and 
children,  and  requested  the  defendant  to  tell  the  plaintiff  that 
lie,  said  Isaac,  wished  her  to  convey  said  real  and  personal 
property  to  the  defendant,  that  he  might  manage  the  same, 
and  do  the  best  he  could  with  it  for  her,  said  plaintiff,  and 
the  children  of  said  Isaac  Collins.  That  said  property,  both 
real  and  personal,  was  heavily  incumbered  at  the  time  of  the 
death  of  said  Isaac,  and  large  liabilities  had  been  incurred  for 
the  improvement  and  repair  of  said  real  estate,  and  said  real 
estate  was  at  that  time  in  the  course  of  repair  and  was  very 
much  torn  up  and'out  of  order.  That  after  the  death  of  said 
Isaac  Collins,  and  before  the  execution  and  delivery  of  the 
deed  and  bill  of  sale  hereinafter  mentioned,  the  defendant 
informed  the  plaintiff  of  the  request  of  her  husband  above 
set  forth,  that  she  should  convey  said  property  to  the  defend- 
ant that  he  might  manage  the  same  and  do  the  best  he  could 
therewith,  for  her  "and  for  the  children  of  her  said  liusband. 
That  said  Isaac  Collins,  at  the  time  of  his  decease,,  left  him 
surviving  four  children  by  a  former  wife.  That  oa  the  16th 
day  of  April,  1866,  the  plaintiff  conveyed  said  real  estaie  to 

LANSING  — VOL.  YT.         47 


370  CASES  IN  THE  SUPREME  COURT         [April, 


Collins  v.  Collins. 


the  defendant  by  a  deed  of  bargain  and  sale,  and  said  personal 
property  by  a  bill  of  sale.  That  said  conveyances  were  made, 
executed  and  delivered  by  the  plaintiff*  in  consideration  of 
the  aforesaid  request  of  her  said  husband,  and  of  the  verbal  and 
implied  promise  of  the  defendant,  that  he  would  do  the  best 
he  could  with  said  property  for  the  plaintiff  and  the  children 
of  said  Isaac  Collins. 

That  the  defendant,  at  the  time  said  conveyances  were 
made,  neither  paid  nor  agreed  to  pay,  nor  did  he  give  or 
agree  to  give,  any  other  consideration  therefor  than  as  above 
expressed.  That  since  said  conveyances  were  made,  the 
defendant  had  paid  out  and  advanced  large  sums  to  discharge 
liens  and  incumbrances  on  said  personal  property,  existing  at 
the  time  of  said  conveyance,  and  to  pay  for  repairs  and 
improvements  upon  said  real  estate,  commenced  prior  to  the 
decease  of  said  Isaac  Collins.  That  the  plaintiff,  at  the  time 
she  executed  and  delivered  said  deed  and  bill  of  sale,  knew 
the  contents,  purpose  and  effect  thereof. 

And  as  conclusion  of  law,  I  find  that  the  plaintiff  is  not 
entitled  to  relief  in  this  action,  and  that  the  defendant  is  enti- 
tled to  judgment  against  the  plaintiff  for  costs. 

Exceptions  were  taken  by  the  plaintiff  to  the  findings  of 
fact  and  conclusion  of  law.  Judgment  was  entered  upon  this 
report,  and  the  plaintiff  has  appealed  to  this  court. 

A.  J.  Colvin,  for  the  appellant. 
N.  C.  Modk,  for  the  respondent. 

Present — MILLER,  P.  J. ;  P.  POTTER  and  PARKER,  JJ. 

r.  , 

V  ...',,-  ^  ••.*••••:..- 

By  the  Court — P.  POTTEK,  J.  I  think  that,  in  equity,  the 
plaintiff  is  not  entitled  to  all  the  relief  she  demands,  but  am 
inclined  to  think  that  a  denial  of  all  relief,  and  a  judgment  so 
declaring  it,  might  operate  as  a  bar  to  any  future  claim  on  her 
part,  and  that,  for  this  reason,  the  legal  conclusion  of  the 
referee  is  based  on  error. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  371 


Collins  v.  Collins. 


Whatever  may  be  the  character  of  the  two  deeds  in  ques- 
tion, to  wit,  the  deed  of  Powell  and  wife  to  the  plaintiff,  and 
the  deed  of  the  plaintiff  to  the  defendant,  the  considerations 
specified  therein  are  subject  to  be  inquired  into,  and  this  may 
be  done  by  parol  evidence. 

The  referee  was,  therefore,  right  in  admitting  such  evi- 
dence on  the  trial,  (Swinburne  v.  Swinburne,  28  N.  Y.,  568, 
573 ;  Chester  v.  Bank  of  Kingston,  16  N.  Y.,  336 ;  Boyd  v. 
McLean,  I  John.  Ch.,  562 ;  fieed  v.  Fitch,  11  Barb.,  399 ; 
Loundsbury  v.  Purdy,  16  Barb.,  376.) 

To  determine  the  object  and  character  of  the  conveyances, 
the  whole  extrinsic  circumstances  may  be  given  in  evidence, 
when  one  of  the  parties  in  interest  is  dead  or  cannot  testify. 
Among  the  leading  features  of  this  case,  is  the  fact  that  Isaac 
Collins,  now  deceased,  had  furnished  a  large  portion  of  the 
purchase-money  of  the  property  in  question,  but  had  the  title 
thereto  taken  in  the  name  of  his  wife,  now  the  plaintiff;  that 
the  property  was  heavily  incumbered,  and,  besides,  he  had 
incurred  large  liabilities  in  improving  the  same  property. 
Notwithstanding  the  title  was  in  the  name  of  his  wife,  he  had 
equities  in  the  estate  growing  out  of  his  improvements  thereon, 
which  his  creditors  could  have  reached.  His  personal  estate 
was  also  largely  incumbered.  Desiring  to  save  the  property, 
as  well  as  to  save  costs  and  expenses  in  winding  up  his  estate, 
upon  his  dying  bed  he  requested  that  his  wife  convey  this 
estate  to  his  brother,  the  defendant,  to  take  charge  of  and  do  the 
best  he  could  with  it  for  his  wife  and  children.  The  plain- 
tiff, his  widow,  in  pursuance  of  this  request,  and  it  must  be 
presumed  to  that  end,  did  so  convey.  I  do  not  think  the 
court  are  called  upon  to  declare  by  what  technical  name  to 
characterize  this  conveyance;  whether  an  absolute  convey- 
ance in  trust,  or  in  the  nature  of  a  mortgage.  The  object  and 
intent  of  the  parties  is  clear,  and  that  intent,  in  equity,  should 
be  carried  out.  The  intestate  had  creditors  whom  he  wished 
should  be  paid.  To  pay  them,  among  other  things,  he 
requested  the  conveyance  to  be  made ;  to  this  intent,  it  must 
be  presumed,  among  other  things,  it  was  made,  and  for  this 


372  CASES  IN  THE  SUPREME  COURT         [April, 


Collins  v.  Collins. 


purpose  the  conveyance  was  received  by  the  defendant.  To 
the  extent  that  the  defendant  has  carried  out  this  design  he 
has  a  right  to  be  protected ;  he  has  a  right  to  be  subrogated 
to  the  place  of  those  creditors  whose  debts  he  has  paid.  This 
is  a  principle  of  equity  too  clear  to  be  controverted.  The 
defendant  only  claims  to  hold  the  property  to  carry  out  the 
expressed  will,  or  wishes,  more  properly,  of  the  intestate  ;  and 
the  conveyance  by  the  plaintiff  to  him,  it  must  be  presumed, 
was  made  to  carry  out  that  will  or  wish  of  the  intestate  ;  and 
the  plaintiff  is  estopped,  upon  the  facts  found,  from  denying 
that  she  conveyed  it  for  that  purpose,  or  those  purposes. 
And  to  the  extent  that  the  defendant  has  paid  and  discharged 
the  claims  for  repairs  and  improvements  made  by  the  intes- 
tate out  of  the  personal  property  of  the  intestate,  he  is  also 
subrogated  to  the  equitable  rights  that  the  intestate  had  in 
the  property  that  could  have  been  reached  by  creditors.  This 
is  an  equally  clear  principle  of  equity. 

There  is,  really,  but  one  other  question  that  needs  discussion, 
and  this  is  surrounded  by  some  complications,  which  do  not 
appear  in  the  report  of  the  referee.  The  plaintiff  claims,  first, 
an'  absolute  reconveyance  of  the  estate.  This  she  is  not  enti- 
tled to  ;  it  is  unjust  to  claim  it.  Second.  She  claims  a  recon- 
veyance of  the  whole  estate,  subject  to  the  liens  and  incum- 
brances  paid  by  the  defendant.  Nor  is  she  entitled  to  this. 
Her  husband  had  an  interest  in  the  estate  conveyed ;  this 
interest  he  desired  should  be  conveyed  for  the  benefit  of  the 
plaintiff  and  his  children  by  a  former  wife.  It  was  so  con- 
veyed by  her.  In  this  conveyance,  in  equity,  she  recognized 
her  husband's  interest,  and  conveyed  it  for  the  benefit  of  her- 
self and  her  husband's  children  /  equitably  as  much  for  them 
as  for  herself.  She  can  neither  repudiate  this  conveyance 
nor  deny  its  object,  and  she  cannot  demand  a  reconveyance 
to  herself  of  that  which  was  conveyed  for  the  benefit  of  these 
children.  That  the  indefiniteness  of  the  respective  claims  of 
the  plaintiff  and  children  will  create  some  complications,  is 
probable.  This  will  require  a  trial,  and  it  must  be  set- 
tled upon  proper  principles  of  equity.  It  is  in  proof  that 


1871.]  OF  THE  STATE  OF  NEW  YORK.  373 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

some  of  her  own  separate  estate  is  involved.  This  can  be 
ascertained  upon  a  trial,  and  allowed  her.  Perhaps,  over  and 
above  ineumbrances,  she  may  also  be  entitled  to  dower.  This 
can  also  be  determined.  But  in  the  view  we  have  taken  of 
this  case,  the  children  of  the  intestate  have  also  interests  in 
this  estate,  the  rights  to  which  and  the  extent  of  which  can 
only  be  determined  by  bringing  them  into  the  case  as  parties. 
This,  I  think,  was  the  error  of  the  referee  in  dismissing  the 
bill.  The  case  should  have  stood  open  to  have  allowed 
the  children  to  be  brought  in.  So,  too,  the  defendant,  it 
appears,  has  received  rents  and  profits  of  the  estate,  which,  it 
is  charged,  has  greatly  increased  in  value,  and  in  its  rental  or 
income.  He  ought  to  have  accounted ;  and  he  is  entitled  to 
a  reasonable  consideration  for  the  management  of  the 
estate.  All  these  things  can  be  established  on  another  trial. 
I  think  the  report  should  be  set  aside. 

Judgment  reversed  and  new  trial  granted,  costs  to  abide 
the  event. 


CORNELIUS  VAN  LEUVAN,  Respondent,  v.  THE  FIRST  NATIONAL 
BANK  OF  KINGSTON,  Appellant. 

(GENERAL  TEEM,  THIRD  DEPARTMENT,  FEBRUARY,  1871.) 

The  defendant,  a  national  bank,  incorporated  under  act  of  congress  of 
June  3d,  1864,  advertised  itself,  by  notices  placed  in  its  banking  room 
and  windows  and  in  other  ways,  as  a  United  States  depositary,  and 
financial  agent  of  the  government,  for  the  exchange  of  seven-thirty  gov- 
ernment notes  into  five-twenty  bonds,  and  were  such  agents  and  engaged 
in  such  business.  Plaintiff,  a  stockholder  of  the  bank,  placed  in  the 
hands  of  its  president  at  the  bank,  in  banking  hours,  a  number  of  these 
notes  to  be  exchanged,  and  received  from  him  a  receipt  therefor  signed 
by  him  individually,  and  which  had  a  printed  caption  containing  the 
defendant's  name,  and  the  name  of  the  cashier  and  president,  and  a 
statement  that  defendant  was  such  depositary  and  agent  The  notes 
were  sent  to  brokers  in  New  York  with  a  letter  signed  (officially) 


374  CASES  IN  THE  SUPREME  COURT          [Feb., 

Van  Lenvan  v.  The  First  National  Bank  of  Kingston. 

by  the  cashier,  who  had  also  been  present  at  the  time  the  bonds  were 
received,  upon  which  was  a  copy  of  the  above  mentioned  printed 
caption  of  the  bank,  directing  the  brokers  to  sell  the  notes  and  credit  the 
proceeds  to  the  bank,  which  they  did.  The  proceeds  of  the  notes  were 
credited  to  the  president  individually  upon  the  books  of  the  bank.  The 
president's  account  was  overdrawn  at  the  time  of  the  credit  for  more 
than  the  amount. 

Held,  that  the  transaction  of  the  plaintiff  was  with  the  bank  and  not  with 
the  president  individually,  and  that  plaintiff  could  recover  the  amount 
of  the  proceeds  of  the  bonds  from  the  bank,  after  demand  upon  it  and 
its  refusal  to  pay  the  same. 

Held,  also,  that  the  entries  made  by  the  agents  of  the  bank,  crediting  the 
proceeds  of  the  notes  to  the  president,  could  not  prejudice  the  rights  of 
the  plaintiff  or  affect  his  recovery. 

It  seems  that,  even  assuming  that  the  intention  of  the  plaintiff  and  defend- 
ant's president  was  that  the  transaction  was  to  be  an  individual  one,  and 
not  with  the  bank,  and  that  the  notes  were  sold  by  the  president  to  the 
bank,  the  bank  would  still  be  liable  to  plaintiff  for  the  proceeds  of  the 
notes,  the  knowledge  of  its  president  and  cashier  being  in  law  its  know- 
ledge of  the  agreement  made,  and  that  it  had  not  been  performed,  and 
it  not  being  therefore  a  bonafde  holder  of  the  notes,  nor  of  their  pror 
ceeds. 


THIS  is  an  appeal  from  a  judgment  rendered  in  favor  of 
the  plaintiff  for  the  sum  of  twelve  thousand  nine  hundred  and 
fifty-six  dollars  and  ninety-eight  cents  upon  a  verdict  of  the 
Ulster  Circuit,  directed  by  the  court.  The  action  was  for  the 
avails  of  $10,000  seven-thirty  treasury  notes  claimed  to  have 
been  converted  by  the  defendants  to  their  own  use. 

It  appeared  from  the  evidence  that  the  defendant,  a 
national  bank  in  the  village  of  Kingston,  in  1867,  advertised 
itself  as  the  United  States  depositary  and  financial  agent 
of  the  government,  and  had  this  heading  to  their  letters, 
and  painted  on  the  bank  building,  and  were  designated  to 
exchange  seven-thirty  notes  for  five-twenty  bonds.  The 
defendants  were  engaged  as  such,  in  making  such  exchanges. 
Jonathan  H.  Hasbrouck  was  the  president  of  the  defendant's 
bank,  and  its  principal  manager.  The  bank  had  advertised 
their  agency  to  make  exchanges,  and  had  cards  hanging  up 
in  the  banking  room,  and  at  the  windows,  giving  notice  of 
such  agency.  The  plaintiff  was  a  stockholder  of  the  bank, 


1871.]  OF  THE  STATE  OF  NEW  YORK.  375 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

and  kept  in  the  vault  of  the  bank  a  tin  trunk  which  contained 
his  securities,  etc.  On  the  llth  July,  1867,  the  plaintiff 
went  to  the  bank  in  order  to  exchange  some  seven-thirty 
government  notes  for  five-twenty  bonds  of  the  government, 
and  had  a  conversation  with  Mr.  Hasbrouck  on  the  subject. 
The  interview,  according  to  the  plaintiff's  statement,  was  as 
follows : 

"  When  I  wanted  the  bonds  exchanged  I  wanted  to  know 
what  he  charged  to  do  these  things,  and  he  told  me,  inas- 
much as  I  was  doing  all  my  business  there,  he  would  not 
charge  anything;  he  didn't  charge  anything  to  those  who  did 
business  at  the  bank,  but  there  was  some  that  he  did  charge, 
but  he  didn't  charge  customers  in  the  bank  like  me." 

This  statement  was  not  contradicted.  Hasbrouck  was  not 
sworn.  One  of  the  clerks  in  the  bank  went  to  the  vault  of 
the  bank  and  brought  the  plaintiff's  tin  trunk,  which  was 
opened  in  the  banking  room  in  the  presence  of  the  officers  and 
clerks  of  the  bank ;  $10,000  of  the  seven-thirty  notes  were 
taken  out,  handed  to  Mr.  Hasbrouck,  the  president,  the  tin 
box  again  locked,  taken  back  to  the  vault  by  a  clerk,  and 
the  president  then  gave  the  plaintiff  a  receipt  in  the  follow- 
ing words : 

"  FIRST  NATIONAL  BANK  OF  KINGSTON. 

"  United  /States  Depositary  and  financial  Agent  of  Govern- 
ment. 

"JONATHAN  H.  HASBROUCK,  Preset.       ALFRED  OSTERHOUT,  Cashier. 
"•KINGSTON,  N.  Y.,  July  11,  1869. 

"  This  is  to  certify,  that  I  have  received  from  C.  M.  Yan 
Leuvan,  U.  S.  seven-thirty  notes  $10,000,  which  I  am  to 
exchange  for  same  amount  of  U.  S.  five-twenty  bonds,  and 
deliver  to  him. 

"J.  H.  HASBROUCK." 

On  the  same  day,  the  defendant,  through  its  cashier,  sent 
these  same  seven- thirties  of  the  plaintiff  to  Fisk  &  Hatch, 
government  brokers  in  New  York,  preceded  by  the  following 
letter : 


376  CASES  IN  THE  SUPREME  COURT          [Feb., 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

"  U.  S.  Depositary  and  Financial  Agent  of  the  Government, 
"  JONATHAN  H.  HASBROTJCK,  President.      ALFRED  OSTERHOTJT,  Cashier. 

"KINGSTON,  N.  Y.,  July  llth,  1867. 
"  Messrs.  FISK  &  HATCH  : 

"  GENTLEMEN.  —  I  will  send  you  by  express  to-morrow,  July 
12th,  seven-thirty,  3d  series,  $10,000,  which  you  will  sell,  and 
place  the  proceeds  to  our  credit.  Respectfully, 

"A.  OSTERHOUT,  Cashier." 

Fisk  &  Hatch  received  the  seven-thirties  from  the  defendant, 
sold  them,  and  remitted  the  avails,  $11,120.50,  to  the  defend- 
ant. Fisk  &  Hatch  had  a  private  account  with  Hasbrouck,  and 
another  account  with  the  defendant.  It  was  upon  the  latter 
the  credit  was  made.  On  the  31st  of  July,  1867,  Fisk  & 
Hatch,  after  selling  the  bonds,  wrote  to  the  defendant  as  fol- 
lows : 

"  A.  OSTERHOUT,  Cashier,  Kingston,  N.  Y. 

"  DEAR  SIK.  —  "We  have  received  your  favor  of  the  llth 
and  12th  instant,  and  credited  your  account  for  the  seven- 
thirties  bought  of  you  as  per  statement,  $11,119.38. 
Account  not  yet  at  hand.  Yery  truly, 

"FISK  &  HATCH. 


There  was  some  evidence  given  in  the  case  showing  that 
the  plaintiff,  on  former  occasions,  from  1864  to  1867,  had 
negotiated  with  Hasbrouck  for  the  purchase,  sale  or  exchange 
of  bonds.  Some  of  these  transactions  were  before  Hasbrouck 
was  president  of  the  defendant's  bank.  A  few  days  after  the 
transaction  for  which  this  action  is  brought  Hasbrouck  failed, 
largely  indebted  to  the  defendant's  bank.  The  plaintiff 
demanded  the  avails  of  his  bonds,  which  was  refused  by  the 
bank  on  the  ground  that  the  transaction  was  between  the 
plaintiff  and  Hasbrouck  individually.  At  the  close  of  the 
evidence  the  defendant's  counsel  moved  for  a  nonsuit  on  the 
following  grounds  : 

1st.  That  by  the  written  contract,  executed  by  Hasbrouck 
when  these  bonds  or  notes  were  taken  for  exchange,  he  made 


1871.]  OF  THE  STATE  OF  NEW  YORK.  377 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

himself  individually  and  personally  liable,  and  not  the 
bank. 

2d.  This  transaction  was  not  the  legitimate  and  ordinary 
banking  business,  for  which  the  bank  could  be  made  liable  by 
the  act  of  its  president,  and  because  this  is  especially  applica- 
ble to  the  case  of  Yan  Leuvan,  who  was  a  stockholder  in  the 
bank. 

3d.  That  even  though  it  were  possible  for  Hasbrouck  to 
bind  the  bank  by  a  transaction  like  this,  it  could  only  be  in  a 
case  where  either  express  authority  was  conferred  upon  him 
by  the  bank  to  bind  it,  or,  secondly,  where  the  bank  had 
apparently  clothed  him  with  power  to  do  such  an  act. 

This  motion  was  denied  by  the  court. 

The  defendant's  counsel  asked  to  go  to  the  jury  upon  the 
question  whether  the  plaintiff  dealt  with  the  bank  or  with 
Mr.  Hasbrouck.  The  plaintiff  was  willing  to  go  to  the  jury 
to  remove  that  question  from  the  case.  After  some  discus- 
sion between  the  defendant's  counsel  and  the  court,  whether 
there  was  any  question  for  the  jury,  the  court  directed  a  ver- 
dict in  favor  of  the  plaintiff  for  $12,299.51,  the  amount  of 
the  proceeds  of  the  bonds  and  interest.  The  defendant's 
counsel  excepted. 

S.  Hand  and  J.  Hardenburgh,  for  the  plaintiff. 
T.  R.  and  F.  L.  Wesibrook,  for  the  defendant. 
Present — MILLER,  P.  J. ;  P.  POTTER  and  PARKER,  JJ. 

By  the  Court — P.  POTTER,  P.  J.  The  defendant's  bank,  if 
organized  under  the  act  of  congress  of  June  3, 1864,  as  I  think 
it  was,  was  authorized  to  negotiate,  buy  and  sell,  or  exchange, 
as  a  corporation,  the  kind  of  property  which  is  the  subject  of 
this  action.  The  president  of  the  bank,  as  an  individual,  was 
not  prohibited  from  doing  the  same  act.  The  defendants 
advertised  themselves  as  agents  of  the  government  to  perform 
that  kind  of  agency,  by  posting  up  conspicuous  notices  upon 

LANSING — VOL.  VI.     48 


378  CASES  IN  THE  SUPREME  COURT  [Feb., 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

cards  in  their  banking  room,  and  exhibited  such  notice  to  the 
public  from  their  windows.  This  apparent  authority  to  third 
persons  was  the  real  authority.  They  could  perform  this 
agency  for  their  bank,  only  through  the  ordinary  methods 
of  performing  corporate  duties,  viz.,  by  their  execiitive  offi- 
cers. If  the  bank  performed  this  duty  in  the  case  before  us, 
the  president  and  cashier  would  be  naturally,  and  were  the 
ordinarily  legitimate  ageiits  to  perform  that  duty ;  and  the 
indicia  of  their  official  or  executive  action  wrould  accompany 
the  evidences  given  or  received.  In  that  respect,  the  receipt 
given  in  this  case  is  peculiar.  It  presents  upon  its  face  an 
official  caption  showing  corporate  agency,  with  the  names  of 
the  executive  agents  of  the  corporation.  None  of  these 
indicia  belong  to  individual  transactions.  Then  follows  the 
body  of  a  receipt,  signed,  it  is  true,  by  but  one  person,  and  in 
the  language  of  the  first  person  singular;  but  that  person  is 
the  same  whose  official  character  stands  above,  upon  the  same 
instrument,  as  the  corporate  agent.  Possessing  such  a  form, 
with  no  extrinsic  evidence  to  change  its  character,  it  is  an 
instrument,  pritna  facie,  at  least,  of  a  corporate  act.  There 
was,  then,  not  only  this  holding  out  to  the  plaintiff  of  a  nego- 
tiation with  him  by  the  bank,  but  the  bank  itself  treated  the 
transaction  as  its  own,  with  itself  and  with  others.  Its  cash- 
ier, in  whose  presence  the  transaction  was  had,  on  the  same 
day,  by  a  communication  headed  by  the  same  corporate 
agency  caption,  with  the  names  of  the  same  executive  officers 
of  the  corporate  agency,  communicated  with  a  noted  banking 
house  in  New  York  the  intent  of  the  defendants  to  forward 
the  notes  in  question  for  sale  for  the  defendants,  with  direc- 
tions to  place  the  proceeds,  when  sold,  to  the  credit  of  the 
defendants ;  and  signing  the  notice  and  direction  as  cashier 
of  the  defendants.  These  instructions  were  obeyed  by  the 
New  York  house,  and  the  proceeds  were  credited  to  the 
defendants.  Up  to  this  point,  as  a  question  of  fact,  this  was 
no  individual  transaction ;  and  no  judge,  upon  this  presenta- 
tion, would  have  been  justified  to  have  submitted  it  to  a  jury  to 
find  whether  this  was  an  individual  transaction.  These  seven. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  379 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

thirty  notes  were  taken  by  the  defendants  from  the  plaintiff  to 
be  exchanged  for  him.  They  did  not  perform  their  agree- 
ment. They  were  liable  to  the  plaintiff  for  the  avails,  or  the 
value,  these  avails  which  they  had  put  to  their  own  credit. 
They  belonged  to  the  plaintiff.  If  the  exchange  to  be  made 
may  be  presumed  to  have  been  intended  by  the  parties  to 
include  the  right  to  sell  the  one  and  purchase  the  other,  they 
were  then  the  plaintiff' 's  brokers,  and  had  failed  to  perform 
their  whole  duty  to  him.  The  money  in  their  hands  was  the 
plaintiff's  money,  and,  upon  demand,  he  was  entitled  to 
receive  it.  It  was  money  received  by  them  to  his  use. 

1  have,  thus  far,  treated  this  case  as  if  the  transaction  was 
between  the  plaintiff  and  the  defendant,  to  see  whether  the 
ruling  of  the  judge  could  be  sustained  in  directing  the  jury  to 
find  a  verdict  for  the  plaintiff,  and  that  there  was  no  question 
of  fact  for  the  jury.  If  this  theory  of  the  judge  was  right,  the 
judgment  is  right ;  and  we  have  said  that  upon  the  face  of 
the  papers  this  theory  was  right. 

But  suppose  it  was  the  intention  of  Hasbrouck,  the  defend- 
ant's president,  to  make  it  his  individual  transaction ;  some 
evidence  was  offered  tending  to  prove  this ;  it  must  be  that 
the  plaintiff  also  so  understood  it,  or  it  did  not  then  amount 
to  a  contract ;  but  assume  this  also,  how  do  the  defendants 
then  get  title  to  this  money  ?  The  law  will  presume  that  a  con- 
tract made  in  the  bank,  in  banking  hours,  by  its  officers,  carries 
knowledge  to  the,  bank  itself  of  the  character  of  the  contract. 
If  that  contract  was  with  Hasbrouck  individually  to  exchange 
these  notes,  the  bank  then  knew  these  notes  had  not  been  so 
exchanged ;  if  it  was  to  sell  them  and  purchase  five-twenty 
bonds,  the  bank  knew  this  contract  had  not  been  performed. 
They  were  not  holders  of  this  money  in  good  faith  ;  the  bank 
itself,  even  upon  that  theory,  had  sold  these  bonds ;  they  had 
paid  no  consideration  fur  them ;  they  were  neither  bona  fide 
holders  of  the  bonds  from  Hasbrouck,  nor  of  the  proceeds  of 
them.  The  knowledge  of  Hasbrouck,  the  president,  and  of 
Osterhout,  the  cashier,  of  the  manner  that  these  bonds  had 
been  obtained,  was  knowledge  to  the  bank.  If,  then,  this  was 


380  CASES  IN  THE  SUPREME  COURT          [Feb., 

Van  Leuvan  v.  The  First  National  Bank  of  Kingston. 

an  individual  transaction  of  Hasbrouck,  it  did  not  change  the 
question  as  to  his  knowledge  of  the  transaction  ;  still,  as  pre- 
sident of  the  bank,  he  knew  the  property  was  the  plaintiff's 
property ;  neither  he  nor  the  cashier,  nor  both  together,  could 
by  any  entries  in  the  books  of  the  defendant,  of  credit  to 
themselves,  or  credits  to  Hasbrouck,  without  plaintiff's  con- 
sent, change  the  title  to  this  property  from  the  plaintiff  to 
themselves  or  to  Hasbrouck.  There  is  no  evidence  that 
Hasbrouck  bought  them,  and  the  receipt  he  gave  nega- 
tives this  idea.  What,  then,  is  the  error  of  the  court 
in  refusing  to  submit  this  immaterial  question  to  the 
jury  ?  But  it  seems  to  be  the  theory  of  the  defendant  that 
these  notes  were  purchased  by  Hasbrouck  of  the  plaintiff, 
and  that  the  bank  purchased  them  of  Hasbrouck  on  the  same 
day,  and  the  books  of  the  bank,  to  show  such  to  be  the  trans- 
action, was  given  in  evidence  by  them  under  plaintiff 's  objec- 
tion. The  bank  book  did  show  that  Hasbrouck  was  credited 
on  that  day  with  $10,000,  and  when  returns  came  from  the 
sale  in  New  York  he  was  credited  with  $1,119.38  more,  the 
amount  of  the  premium,  but  no  such  agreement  is  proved. 

It  can  hardly  be  admitted  as  a  sound  legal  proposition, 
that  such  entries  by  the  bank  officers,  or  by  their  clerks, 
unknown  to  the  plaintiff,  can  be  binding  upon  him  or 
affect  his  legal  rights ;  that  was  not  the  plaintiff's  contract ; 
the  defendant  could  not  make  one  for  him ;  his  contract  was 
in  writing ;  prima  facia  the  writing  is  the  true  legal  contract. 
Until  that  agreement  is  proved  to  be  different,  crediting  Has- 
brouck with  $10,000,  which  the  bank  knew  did  not  belong  to 
him,  was  a  fraud,  and  permitting  Hasbrouck  to  draw  it  out, 
if  he  did  so,  was  a  fraud.  Whether  done  by  an  innocent 
clerk  or  otherwise,  the  bank  knew  it  was  a  fraud.  I  mean, 
that  is  the  legal  presumption,  because  the  law  casts  the  know- 
ledge of  the  mala  fides  on  them.  If,  instead  of  drawing  it 
out  afterward,  Hasbrouck's  account  was  overdrawn  at  the 
time,  and  this  added  so  much  to  the  defendant's  security 
against  Hasbrouck  by  making  his  account  so  much  better, 
and  themselves  so  much  richer,  the  fraud  is  no  less.  So  that 


1871.]  OF  THE  STATE  OF  NEW  YORK.  881 

Hackford  v.  The  New  York  Central  Railroad  Co. 

in  this  view,  it  seems  to  me  to  be  immaterial  whether  the 
transaction  between  the  plaintiff  and  Hasbrouck  was  with 
the  latter  as  an  individual  or  as  the  representative  of  the  bank ; 
the  bank  cannot  be  a  bonafide  holder  of  this  money.  By  the 
testimony  of  the  cashier,  it  had  been  drawn  out  before  it  waa 
credited  to  Hasbrouck ;  so  the  bank  gave  no  consideration 
for  it.  If  this  view  of  the  case  is  correct,  there  was  no  mate- 
rial question  of  fact  to  be  submitted  to  the  jury.  The  legal 
propositions,  so  ably  argued  by  the  defendant's  counsel,  have 
not,  in  my  opinion,  a  basis  of  fact  upon  which  they  can  be 
applied.  They  are  sound  enough  upon  the  aesumed  case,  but 
do  not  require  discussion  in  the  case  before  us.  I  think  the 
judgment  should  be  affirmed. 
Judgment  affirmed. 


PHILIP  KACKFORD,  Administrator,  &c.,  v.  THE  KEW  YORK 
CENTRAL  RAILROAD  COMPANY. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  DECEMBER,  1871.) 

The  plaintiff's  intestate,  while  driving  rapidly  over  the  defendant's  street- 
crossing  hi  a  heavy  storui  of  snow  and  wind,  was  struck  by  its  train  of  cars 
and  instantly  killed.  The  crossing  was  at  an  elevation  above,  and  visible  for 
half  a  mile  along,  the  street,  and  near  it  approaching  trains  could  be  seen 
at  the  distance  of  1,400  feet.  Notice  of  the  crossing  had  been  removed, 
and  the  train  approached  at  a  speed  of  twenty  miles  per  hour  without 
signal,  by  bell  or  whistle.  The  deceased  had  occasionally  driven  over  the 
crossing ;  and  a  teamster,  whom  he  passed  just  before  reaching  it,  and  who 
saw  the  train,  called  to  him  to  stop,  and  the  call  was  heard  by  one  seven 
or  eight  rods  from  the  crossing.  Another  standing  on  the  street  ten 
rods  from  the  track  noticed  the  train  when  some  six  rods  from  the  cross- 
ing, but  a  cart  had  just  passed  over  and  the  driver  neither  saw  nor 
heard  it  before  crossing,  nor  on  account  of  the  storm  could  he  see  beyond 
his  horses'  heads  without  a  sharp  look-out.  Held,  in  an  action  by  the 
administrator  to  recover  against  the  company,  that  the  question  of  con- 
tributory negligence  should  have  been  submitted  to  the  jury,  and  a  non 
suit  was  error. 

In  an  action  to  recover  on  the  ground  of  the  defendant's  negligence,  the 
plaintiff  need  not  allege  or  make  proof  that  he  is  free  from  concurrent 
negligence. 


382  CASES  IN  THE  SUPREME  COURT          [Dec., 

Hackford  t>.  The  New  York  Central  Railroad  Co. 

But,  it  seems,  if  on  the  trial  there  is  evidence  of  plaintiff's  negligence,  from 
his  own  or  defendant's  witnesses,  he  must  disprove  it  to  entitle  himself  to 
a  recovery. 

MOTION  by  the  plaintiff,  upon  a  case  and  exceptions,  for  a 
new  trial,  ordered  to  be  heard  in  the  first  instance  at  General 
Term.  The  facts  are  stated  in  the  opinion. 

Present — MULLIN,  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

MULLIN,  P.  J.  The  plaintiff,  as  administrator,  brought 
this  action  to  recover  damages  for  the  killing  of  William 
Hackford,  at  Geddes,  in  the  county  of  Onondaga,  in  Decem- 
ber, 1869,  by  reason  of  the  negligence  of  the  employes  of  the 
defendant. 

The  deceased  was  driving  his  team  from  the  city  of  Syracuse 
to  his  residence,  some  fifteen  miles  from  that  city.  It  was  a 
very  stormy  day.  Snow  was  falling,  and  the  wind  blowing 
very  hard.  The  street  along  which  the  deceased  was  driving 
runs  east  and  west  at  the  railroad  crossing  where  the  accident 
occurred,  and  it  crosses  the  track  at  nearly  right  angles. 

The  deceased  was  going  west.  The  engine  by  which  he 
was  struck  was  moving  south,  at  a  speed  of  about  twenty 
miles  per  hour.  There  was  no  sign  up,  indicating  that  there 
was  a  railroad  crossing  at  the  place  of  the  accident ;  the  sign, 
that  had  been  up  having  been  removed.  A  carman,  with 
furniture  in  his  cart,  crossed  the  track  just  before  the  deceased 
attempted  to  cross.  There  was  one  other  team  approaching 
the  track  from  the  east.  The  driver  of  the  other  team  stop- 
ped, seeing  the  approaching  engine,  and  cried  whoa  to  the 
deceased  just  before  he  got  on  to  the  track.  The  deceased 
did  not  regard  it,  but  drove  on  and  was  instantly  struck  and 
killed. 

On  the  trial  the  plaintiff's  witnesses  testified  to  the  fore- 
going facts,  and  also  that,  as  the  engine  approached  the  track, 
the  bell  was  not  rung,  nor  was  the  whistle  blown.  These 
omissions  of  duty,  together  with  the  rate  of  speed,  and  absence 
of  a  sign  indicating  the  crossing,  constituted  the  negligence 
on  the  part  of  the  defendant. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  383 

Hackford  v.  The  New  York  Central  Railroad  Co. 

The  defence  set  up  in  the  answer  were,  first,  a  general 
denial ;  and,  second,  concurring  negligence  on  the  part  of 
the  intestate. 

The  evidence  of  negligence  on  the  part  of  the  defendant  was, 

1st.  That  the  railroad  track  could  be  seen  by  a  person 
going  from  Syracuse  toward  the  crossing  for  a  distance  of 
some  half  a  mile  except  where  houses  intervened.  The  track 
was  higher  than  the  land  on  either  side,  and  higher  than  the 
street.  Near  the  crossing  a  train  could  be  seen  for  a  distance 
of  1,400  feet  in  one  direction,  and  the  eighth  of  a  mile  in  the 
other. 

Henry  C.  Allen  testified  that  he  had  in  Geddes  a  house  on 
the  north  side  of  Genesee  street,  some  six  to  ten  rods  from 
the  crossing.  He  was  in  the  street  at  the  time  of  the  accident, 
and  saw  the  train  approaching  when  it  was  within  five  or  six 
rods  of  the  crossing. 

Michael  Ready  testified  that  he  lived  in  Geddes,  on  the 
north- west  side  of  Genesee  street  and  east  of  the  railroad. 
At  the  time  of  the  accident  he  was  standing  seven  or  eight 
rods  from  the  crossing ;  heard  a  man  shouting  "  whoa ;" 
looked  up  and  saw  the  train  passing,  and  just  about  same 
time  saw  the  smoke-stack  of  the  engine ;  and  then  the  col- 
lision occurred  almost  instantly,  not  half  a  second  after  he 
heard  the  cry  "  whoa."  The  intestate,  with  his  team,  passed 
along  pretty  swift.  When  he  first  saw  the  intestate  he  was 
within  a  rod  of  the  track ;  and  when  he  saw  the  engine  the 
intestate  was  going  right  on  to  the  track. 

McDonald  was  the  person  driving  the  team  approaching 
the  track.  Deceased  passed  McDonald  pretty  fast,  when  the 
latter  cried  "  whoa ;"  he  was  turned  out  so  that  the  deceased 
might  pass  him. 

Justin  M.  Woodford  testified  that  the  storm  was  very 
severe ;  so  severe  that  you  could  not  see  many  rods. 

It  was  also  proved  that  the  deceased  traveled  occasionally 
to  and  from  Syracuse  on  Genesee  street. 

Henry  D.  Gregory  was  the  carman  who  crossed  the  track 
ahead  of  deceased ;  and  he  testified  that  before  he  crossed  he 


884  CASES  IN  THE  SUPREME  COURT          [Doc., 

Hackford  v.  The  New  York  Central  Railroad  Co. 

did  not  see  or  hear  the  cars.  He  could  not  see,  by  reason  of 
the  storm,  any  further  than  the  horses'  heads ;  not  unless  he 
looked  pretty  sharp. 

Upon  this  evidence  the  plaintiff  was  nonsuited,  on  the 
ground  that  the  deceased  was  himself  guilty  of  negligence. 

The  plaintiff's  counsel  asked  the  court  to  submit  the  ques- 
tion of  concurring  negligence  to  the  jury. 

The  request  was  refused,  on  the  ground  that  there  was  not 
sufficient  evidence  to  go  to  the  jury ;  and  to  this  ruling  the 
plaintiff's  counsel  excepted,  as  he  did  to  the  granting  of  the 
nonsuit. 

The  court  committed  a  grave  error  in  refusing  to  submit 
the  question  of  the  concurring  negligence  of  the  deceased  to 
the  jury. 

Had  the  day  been  a  fair  one,  so  that  there  was  nothing  to 
prevent  from  seeing  and  hearing  an  approaching  train,  I 
should  be  of  opinion  that  the  deceased  would  have  been 
chargeable  with  the  grossest  negligence. 

The  day  was  a  very  stormy  one.  The  wind  was  high,  and 
snow  falling  in  large  quantities,  and,  of  course,  it  was  carried 
by  the  wind  against  the  faces  of  those  traveling  against  the 
wind.  From  what  point  of  the  compass  the  wind  was  blow- 
ing on  the  day  of  the  accident  does  not  appear  in  the  case; 
but  it  does  appear  that  the  man  who  crossed  the  track  just 
ahead  of  the  deceased  could  not  see  further  than  his  horse's 
head  unless  he  looked  pretty  sharp.  There  is  no  evidence 
that  a  person  approaching  the  track  could  see  an  approaching 
train  at  a  greater  distance  than  six  rods  from  the  crossing. 
If  the  train  was  moving  twenty  miles  per  hour,  it  would 
move  the  distance  of  six  rods  in  a  little  over  a  second.  If, 
then,  we  could  assume  that  the  deceased  saw  the  engine  six 
rods  before  it  reached  the  crossing,  he  had  no  time  to  save 
himself ;  he  must  have  been  on  the  track  and  escape  impos- 
sible. If  we  assume  that  he  did  not  look  for  an  approaching 
train,  and  it  would,  under  ordinary  circumstances,  be  negli- 
gence not  to  look,  yet  when  it  is  demonstrated  that  if  he  had 
looked  he  could  not  have  escaped  injury  or  death,  surely  his 


1871.]  .        OF  THE  STATE  OF  NEW  YORK.  385 

Hackford  v.  The  New  York  Central  Railroad  Co. 

right  to  recover  of  the  party  whose  negligence  caused  the 
injury  would  not  be  denied  him. 

Again,  it  was  shown  that  the  man  who  crossed  ahead  of  him 
did  not  hear  the  approaching  train,  and,  by  reason  of  neither 
hearing  nor  seeing  it,  almost  lost  his  life ;  must  we  not  assume 
that  the  deceased  did  not  hear  it,  and,  therefore,  his  senses 
failed  to  apprise  him  of  his  danger  ?  Is  it  probable  that  two 
men  rushed  recklessly  into  the  jaws  of  death,  having  know- 
ledge that  death  was  imminent  ?  If  we  are  to  indulge  in  pre- 
sumption, is  it  not  the  natural  one  that  men  use  their  senses 
for  their  protection,  when  they  have  reason  to  suppose  that 
danger  is  impending  ? 

If,  upon  the  evidence  given  by  the  plaintiff,  the  jury  could 
reasonably  find  that  by  reason  of  the  storm  the  deceased  could 
not,  in  the  absence  of  the  ringing  of  the  bell  or  blowing  the 
whistle,  ascertain  the  approach  of  a  train  in  time  to  escape  a 
collision  with  it  would  not  a  verdict  for  the  plaintiff  have  been 
sustained  ?  That  such  a  state  of  facts  might  have  been  found 
upon  the  evidence  I  entertain  no  doubt. 

It  was,  therefore,  the  duty  of  the  court  to  submit  the  ques- 
tion to  the  jury  as  to  the  concurring  negligence  of  the 
deceased,  and,  because  the  request  to  submit  it  was  refused, 
a  new  trial  must  be  granted. 

The  learned  judge  said,  in  granting  the  nonsuit,  that  the 
plaintiff  had  the  affirmative  of  showing  that  he  was  free 
from  any  negligence  that  contributed  to  the  production 
of  the  injury.  This  remark  cannot  be  the  ground  for  grant- 
ing a  new  trial,  if  it  is  erroneous;  but  it  may  be  taken 
into  consideration  in  determining  the  weight  the  court  gave 
to  the  evidence  of  the  concurring  negligence  of  the  deceased, 
when  it  refused  to  submit  the  question  to  the  jury.  If  the 
learned  judge  intended  to  hold  that  a  plaintiff  is  bound  to 
allege,  in  a  complaint  in  an  action  for  damages  resulting  from 
an  injury  caused  by  the  negligence  of  the  defendant,  and  to 
prove  affirmatively  on  the  trial  he  (the  plaintiff)  was  not 
guilty  of  any  negligence  that  contributed  to  the  injury,  he 
was  mistaken.  The  concurring  negligence  of  the  plaintiff  is 

LANSING— VOL.  VI.         49 


38G  CASES  IN  THE  SUPREME  COURT          [Dec., 

Hackford  v.  The  New  York  Central  Railroad  Co. 

matter  of  defence,  and  the  plaintiff  is  under  no  obligation  to 
prove  anything,  to  entitle  him  to  recover,  but  the  injury,  and 
that  it  was  caused  by  defendant's  negligence. 

No  precedent  of  a  common-law  declaration  in  case  for  neg- 
ligence can  be  found,  I  think,  in  which  the  plaintiff  asserts 
that  he  was  free  from  negligence,  nor  any  decision  that  he  is 
bound  to  make  such  proof.  (See  Precedents  of  Declarations 
in  Case  for  Negligence,  3  Chitty's  Pleadings.)  But  when,  on 
the  trial,  there  is  evidence  of  negligence  on  the  part  of  the 
plaintiff,  whether  it  comes  from  the  plaintiff's  or  defendant's 
witnesses,  the  plaintiff  must  overcome  it,  in  order  to  entitle 
him  Self  to  recover.  In  this  way,  and  in  this  way  only,  is  the 
plaintiff  bound  to  disprove  his  own  negligence. 

To  meet  the  views  of  the  court,  that  plaintiff  had  the  bur- 
de,n  of  proving  the  absence  of  negligence  affirmatively,  a 
higher  degree  of  proof  was  demanded  than  he  was  bound  to 
make,  and  thus  wrong  wras  done  to  the  plaintiff.  If,  how- 
ever, the  court  merely  meant  to  say  the  plaintiff 's  own  evi- 
dence shows  his  negligence,  and  that  it  concurred  to  produce 
the  injury,  he  must,  therefore,  give  evidence  to  rebut  the 
inference  of  negligence  resulting  from  the  evidence  he  had 
himself  given,  he  was,  doubtless,  correct.  If  the  plaintiff's 
witnesses  proved  defendant's  defence,  it  was  as  available  as  if 
proved  by  itself.  This  construction  of  the  charge  would 
hardly  be  consistent  with  the  proposition  that  the  plaintiff' 
held  the  affirmative  of  disproving  negligence.  If  he  had,  it 
must  follow  that  the  law  presumed  negligence  against  him. 
On  the  contrary,  negligence  is  never  presumed,  but  must  be 
affirmatively  proved. 

There  must  be  a  new  trial,  with  costs  to  abide  the  event. 

New  trial  granted. 


1872.]  OF  THE  STATE  OF  NEW  YORK. 

Shepherd  c.  Hill. 


CHARLES  N".  SHEPHERD,  Appellant,  v.  WILLIAM  D.  HILL  and 
MARY  J.  HILL,  his  wife,  Respondents. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  SEPTEMBER,  1872.) 

In  an  action  in  the  nature  of  a  creditor's  bill  to  reach  property  in  the 
hands  of  a  third  person  alleged  to  be  held  for  the  debtor's  benefit,  the 
decision  of  a  referee  upon  appeal  on  the  exceptions  to  findings  of  fact  is 
to  be  considered  at  General  Term  in  view  of  all  the  evidence,  and  to  be 
reversed  or  affirmed  according  to  the  conclusion  of  fact  which  shall  be 
arrived  at  by  the  court 

A  debtor  made  a  general  assignment  of  his  goods  (in  1801),  some  of  them 
purchased  on  credit  from  the  plaintifll  The  assignee  sold  the  assigned 
property  in  bulk  to  a  third  person,  a  farmer,  for  whom  the  debtor  then 
claimed  to  act  as  agent  in  the  management  of  a  miscellaneous  business, 
but  of  such  a  character  and  under  such  circumstances  as  led  to  a  conclu- 
sion that  the  agency  was  fraudulent  and  the  business  his  own.  During 
the  alleged  agency  real  estate  was  conveyed  to  his  wife,  and  he  made  a 
deposit  to  her  credit,  and  continued  to  make  like  deposits  after  he  claimed 
to  have  terminated  his  first  agency,  when  he  assumed  to  act  as  agent  for 
his  wife,  who  had  no  property  except  such  as  came  to  her  from  her  hus- 
band after  he  had  incurred  the  debt  In  a  creditor's  action  to  reach  the 
interest  standing  in  the  wife's  name  in  the  real  estate,  the  court  reviewed 
the  question  of  fraud  upon  the  evidence  and  reversed  the  decision  of  the 
referee,  which  was  for  the  defendant,  and  ordered  a  new  trial. 

.  THIS  action  is  what  is  called  a  creditor's  bill,  brought  to 
reach  property  of  the  defendant,  William  D.  Hill,  some  of 
which,  it  is  claimed,  is  covered  by  a  claim  of  the  defendant, 
Mary  J.  Hill,  in  fraud  of  the  creditors  of  the  said  William  D. ; 
and  to  set  aside  a  conveyance  of  real  estate  held  in  the  name 
of  the  said  Mary,  the  wife  of  the  said  William,  also  charged 
to  be  in  fraud  of  the  rights  of  the  creditors  of  the  said  William, 
and  for  other  relief.  The  action  was  referred  to  a  sole  referee, 
who  reported  the  issue  of  fact  and  law  in  favor  of  the  defend- 
ants. From  the  judgment  entered  upon  the  report  of  the 
referee  the  plaintiff  appeals  to  this  court. 

S.  W.  Judson,  for  the  plaintiff. 

Cooke  &  Loundsbery,  for  the  defendants. 

Present — P.  POTTER,  P.  J.,  PARKER  and  DANIELS,  JJ. 


388  CASES  IN  THE  SUPREME  COURT         [Sept., 

Shepherd  t>.  Hill. 

P.  POTTER,  P.  J.  If  the  facts  are  correctly  found  in  this  case 
by  the  referee,  his  conclusions  of  law  are  right.  It  seems,  how- 
ever, to  be  the  settled  law  in  such  a  case  as  this,  that  it  is  the 
duty  of  this  court  to  determine  whether  the  facts  controverted 
on  the  trial  are  correctly  found  by  an  examination,  by  the 
court,  of  all  the  evidence  (Burgess  v.  Simonson,  45  N.  Y., 
228),  and  in  cases  of  fraud  to  examine  all  the  evidence  in 
the  case,  and  to  reverse  or  affirm  the  judgment,  according  to 
the  conclusion  of  fact  which  shall  be  arrived  at  upon  the 
question  of  fraud.  (Per  COMSTOCK,  J.,  in  Griffin  v.  Jfar- 
quardt)  17  N.  Y.,  30.)  And  this  duty  is  also  enforced  by 
the  provisions  of  the  Code  (§§  268,  272).  In  a  case  like  that 
at  bar,  which  is  exceedingly  voluminous,  and  having  the 
principal  issue  in  it  a  question  of  fraud,  the  duty  is  somewhat 
onerous.  In  all  such  cases,  where  the  appeal  is  based  upon 
the  ground  that  the  findings  of  fact  are  contrary  to  evidence, 
it  is  not  possible  to  determine  it  by  any  well  defined  rules  of 
law,  but  the  decision  must  depend  in  a  great  degree  upon  the 
peculiar  circumstances  of  each  case.  (Barrett  v.  Third  Ave. 
jR.  R.  Co.,  45  K  Y.,  632.) 

There  are  certain  leading  facts  in  this  case  that  may  be  first 
stated,  which  are  not  controverted,  and  which,  being  so  stated, 
will  enable  us  the  more  readily  to  apply  the  other  evidence, 
upon  which  the  report  of  the  referee  is  based,  and  to  draw 
our  own  legitimate  conclusions. 

The  defendant,  William  D.  Hill,  had  purchased  goods  of 
the  plaintiff  upon  credit  in  his  own  name,  in  June,  1861. 
On  the  26th  August,  1861,  two  months  thereafter,  said  Hill 
made  a  general  assignment  of  all  his  property  for  the  benefit 
of  his  creditors,  giving  preferences.  The  plaintiff  was  not 
preferred  as  to  his  debt.  The  assignee,  Slight,  sold  the 
assigned  property,  including  a  lease  of  the  store  (of  the  value 
of  $1,200)  in  a  lump  to  one  John  McMullen,  then  a  stranger 
to  the  assignee.  The  negotiations  and  arrangement  for  this 
McMullen  to  purchase  were  made  entirely  by  the  defendant, 
"William  D.  Hill.  McMullen  was  a  farmer,  living  about  forty 
miles  from  Kingston,  the  place  where  the  store  and  tho 


1872.]  OF  THE  STATE  OF  NEW  YORK.  389 

• 

Shepherd  t>.  Hill. 

assigned  property  was  kept,  and  was  not  called  as  a  witness 
by  defendants. 

Upon  the  purchase  by  McMullen,  or  in  his  name,  the 
defendant  William  D.  Hill  took  possession  again  of  the  store 
and  property,  including  the  assigned  accounts,  and  continued 
business  as  before,  but  claiming  to  be  the  agent' of  McMul- 
len, and  opened  an  account  with  the  Ulster  County  Bank  in 
the  name  of  "  W.  D.  Hill,  agent,"  and  continued  it  from  Octo- 
ber, 1861,  to  31st  May,  1867. 

During  all  that  period,  and  even  down  to  the  day  of  the 
trial,  W.  D.  Hill  never  had  any  settlement  or  accounting  with 
McMullen,  as  to  his  agency  or  otherwise ;  and  there  never 
was  any  arrangement  or  agreement  between  him  and  McMul- 
len as  to  any  terms  or  conditions  of  his  agency  which  appear 
in  the  case,  or  as  to  his  powers  as  such  agent,  except  that  he 
was  to  have  fifty  dollars  per  month.  During  that  time,  Hill 
bought  and  sold  notes,  bonds  and  mortgages,  county  bonds, 
sheep-skins,  butter,  apples,  beeswax,  mules  and  horses,  and  he 
has  no  regular  account  of  that  business  for  McMullen. 

During  the  same  time,  Hill  acted  as  agent  for  one  Ho  well, 
also  for  a  Mr.  Brush  and  for  Mr.  Grant ;  and  for  certain  other 
parties  he  went  to  the  oil  regions.  He  also  acted  as  agent  of 
an  insurance  company.  His  business  for  Howell  was  to  the 
extent  of  $100,000,  working  over  a  year,  at  a  salary  of  $100 
a  month.  The  business  he  says  he  did  for  McMullen 
amounted  to  $50,000;  for  Brush,  $12,000  to  $15,000.  His 
drafts  on  Howell  during  that  time,  were  passed  to  the  credit 
<?,f  William  D.  Hill,  agent,  in  the  Ulster  County  Bank,  and 
ae  checked  it  out  in  the  same  name.  His  business  with 
Grant  was  buying  and  selling  mules  and  horses,  and  this 
account  was  kept  in  the  same  way.  This  account  included 
notes  taken  in  the  business  and  discounted  at  the  bank.  He 
kept  only  one  bank  account. 

This  bank  account  was  balanced  on  the  31st  May,  1867,  by 
William  D.  Hill,  agent,  on  that  day ;  he  drawing  a  check  for 
$470.91,  the  exact  sum  on  that  day  standing  to  the  credit  of 
William  D.  Hill,  agent  What  exactly  was  done  with  this 


390  CASES  IN  THE  SUPREME  COURT         [Sept. 

Shepherd  «.  Hill. 

$479.91,  so  belonging  to  John  McMullen,  as  is  claimed,  does 
not  appear,,  unless  it  may  be  inferred  that  it  was  taken  as 
balance  of  salary  by  "W.  D.  Hill,  agent,  and  so  just  squaring 
accounts.  Hill  has  an  impression  that  he  paid  costs  with  it 
in  a  suit  he  commenced  in  McMullen's  name.  McMullen, 
very  kindly,  has  not  as  yet  demanded  it.  But  with  no  evi- 
dence of  dissatisfaction  on  the  part  of  McMullen ;  no  evidence 
of  a  dismissal  of  his  agent ;  with  no  meeting  of  the  parties  to 
agree  on  a  breach  or  change  of  this  relation  of  principal  and 
agent ;  there  is  an  abrupt  close  of  the  relation  made  ex  partey 
by  the  agent,  with  no  complaint  from  Mr.  McMnllen  and  no 
demand  of  the  profits.  The  store  merchandising  was  discon- 
tinued in  December,  1861,  and  before  he  commenced  this  mis- 
cellaneous business. 

A  very  good  reason  is  presented  tor  the  omission  of  W.  D. 
Hill  to  settle  with  McMullen,  in  that,  as  Hill  testifies,  he  has 
no  account  book,  from  1861  to  1867,  of  his  dealing  with  indi- 
viduals for  whom  he  acted  as  agent,  and  no  account  with 
McMullen  but  the  bank  account,  and  that  a  large  proportion 
of  his  transactions  are  not  even  in  the  bank  account.  He 
states  that  he  was  to  have  fifty  dollars  a  month  from  McMul- 
len, and  had  lived  that  up ;  McMullen  would,  therefore,  by 
legal  inference,  be  entitled,  as  matter  of  law  and  justice,  to  all 
that  was  made  over  the  salary.  At  all  events,  Hill  would 
have  nothing  belonging  to  him  when  he  closed  the  agency. 

But  one  month  and  fourteen  days  before  closing  his  agency 
with  McMullen,  to  wit,  on  the  18th  April,  1867,  he  opened  a 
new  account  in  the  same  Ulster  County  Bank  in  the  name  of 
Mary  J.  Hill  (his  wife),  the  other  defendant,  by  depositing  in 
that  bank  to  her  credit  the  balance  of  some  note,  to  the  amount 
of  $587  of  his  previous  business,  and  during  the  same  month 
depositing  other  cash  to  the  amount  of  about  $1,400  more, 
making  his  deposits  in  favor  of  his  wife  in  that  month  nearly 
$2,000,  and  drew  out  about  $1,200,  having  standing  to  his 
credit,  before  closing  the  McMullen  agency,  about  $800 ;  and 
during  the  next  nine  months  he  had  deposited  in  the  bank,  to 
her  credit,  from  various  sources,  above  $23,000,.  and  during 


1872.]  OF  THE  STATE  OF  NEW  YORK.  391 

Shepherd  v.  Hill. 

the  following  eight  months  about  $11,000,  leaving  a  balance 
in  favor  of  the  account  at  its  close  of  $883.17. 

But  before  he  closed  the  agency  with  McMullen,  which  was 
in  May,  1867,  and  while  he  claims  still  to  have  been  his  agent, 
and  before  he  commenced  this  agency  in  the  name  of  his  wife, 
the  18th  April,  1867,  to  wit,  on  the  26th  September,  1866, 
there  was  purchased,  in  the  name  of  Mrs.  Hill,  a  house  and 
lot,  for  the  price  of  either  $6,250  or  $5,750,  and  $1,750  was 
paid  thereon,  and  the  title  taken  in  the  name  of  the  wife,  Mrs. 
Hill,  and  a  bond  and  mortgage  was  given  back  for  $4,000, 
signed  by  both  Hill  and  his  wife.  And  as  this  estate,  with 
the  improvements  made  thereon  by  Mr.  Hill,  is  shown  to  be 
worth  more  than  the  purchase  price,  the  plaintiff  claims  that 
the  interest  therein,  which  is  in  excess  of  the  lien  by  mort 
gages,  ought  to  go  to  pay  his  judgment. 

The  preceding  statements,  so  far  as  they  are  statements  of 
facts,  are  carefully  abstracted  from  the  case,  and  are  not  con- 
troverted. 

It  then  became  the  duty  of  the  referee  to  find,  from  th& 
above  and  other  evidence,  whether  the  defendant  Wm.  D. 
Hill  has,  or  has  had,  property  sufficient  to  pay  the  debt  and 
judgment  he'  honestly  owes  the  plaintiff,  since  the  same 
became  due.  This  payment  it  is  but  plain,  simple  justice 
that  he  should  make.  If  he  has  had,  or  now  has  property, 
and  has  used  a  fraudulent  cover  or  concealment,  to  hinder, 
delay  or  defraud  his  creditor,  and  such  property  can  be  reached, 
the  plaintiff  is  entitled  to  relief,  and  entitled  to  it  in  this  action, 
if  the  evidence  will  justify  such  a  judgment. 

The  uncontradicted  evidence,  the  evidence  of  the  defend- 
ants themselves,  the  legitmate  legal  presumption  necessarily 
arising  from  the  uncontradicted  evidence,  would  seem  to 
demand  a  different  conclusion  and  judgment  than  that  given 
by  the  referee.  While  the  general  rule  is,  that  courts  on  these 
appeals  will  not  review  questions  of  fact  where  there  is  a  con- 
flict of  evidence,  the  rule  has  never  been  carried  to  such  an 
extent  as  to  adopt  absurd,  unreasonable  or  unnatural  conclu- 
from  undisputed  facts,  or  facts  from  which  well-estab- 


892  CASES  IN  THE  SUPREME  COURT         [Sept., 

Shepherd  «.  Hill. 

lished  legal  presumptions  arise  directly  the  converse  of  those 
arrived  at  by  the  referee.  And  the  rules  we  have  first  above 
referred  to  do  not  limit  the  court  to  merely  uncontroverted 
facts.  The  courts  have  gone  as  far,  in  the  direction  of  making 
a  referee  a  kind  of  scape-goat  for  unjust  conclusions,  as  is 
safe;  and  they  must  not  bring  reproach  upon  themselves  by 
a  refusal  to  examine  whether  the  adoption  of  the  conclu- 
sions of  a  referee  might  not  seem  improperly  to  reflect  upon 
the  judicial  mind  which  is  to  be  called  into  exercise  in  a 
review. 

We  cannot  shut  our  eyes  to  that  extraordinary  feature  of 
this  case.  McMullen,  whose  agent  Hill  pretended  to  be,  was 
a  farmer,  living  forty  miles  in  the  interior ;  a  stranger  to  all 
but  the  defendant  Hill,  who  was,  or  pretended  to  -be  then, 
insolvent.  McMullen  having  no  bank  account  himself,  and 
with  no  evidence  of  his  acquaintance  with  business,  other 
than  farming,  that  he  should  buy  a  store  of  goods,  put  this 
insolvent  Hill  into  it  at  a  salary  of  fifty  dollars  a  month, 
make  him  an  agent  with  unlimited  powers,  continuing  on  for 
a  period  of  six  years,  never  during  that  time  receiving  any 
return,  never  inquiring  as  to  the  result  of  his  agent's  transac- 
tions, never  inquiring  as  to  the  liability  upon  himself  of  his 
agent's  dealings,  his  agent  in  the  meantime  closing  up  the 
mercantile  business  and  entering  into  that,  among  others,  of  a 
broker  in  buying  notes,  bonds,  mortgages,  mules,  horses,  bees- 
wax, sheep-skins,  butter,  apples ;  taking  agencies  and  broker- 
age for  other  parties,  and  insurance  companies  and  oil  specu 
lators,  from  one  of  whom  he  received  a  salary  of  $100  per 
month ;  keeping  no  regular  account  of  his  dealings  or  profits, 
and  with  no  account  but  his  bank  account,  and  that  contain- 
ing but  a  portion  of  his  transactions,  this  bank  account  being 
kept  in  his  own  name  as  agent,  without  naming  his  principal ; 
that  during  such  agency  for  McMullen,  he  was  able  to  pur- 
chase real  estate  in  the  name  of  his  wife  and  to  pay  $1,750 
thereon ;  that  when  this  was  done,  he  could,  of  his  own  will 
and  pleasure,  dissolve  his  relationship  with  his  principal  with- 
out consulting,  accounting  or  settling  with  him,  and  could 


1872.]  OF  THE  STATE  OF  NEW  YORK.  393 

Shepherd  v.  HU1. 

draw  out  a  balance  of  funds  in  the  bank,  under  the  McMullen 
agency,  six  weeks  after  he  had  established  a  new  agency,  in 
the  name  of  his  wife,  as  principal,  and  after  he  had  deposited  to 
her  credit  more  than  $5,500,  and  had  then  above  $1,000  stand- 
ing in  bank  to  her  credit ;  these,  I  say,  are  most  extraordinary 
features.  The  case  fails  to  disclose  upon  what  terms  and  for 
what  consideration  he  entered  upon  this  last  agency,  and 
transacted  business  for  his  wife ;  but  there  is  sufficient  evi- 
dence that  his  wife  was  ignorant  of  its  relation  until  a  time,' 
quite  a  period  of  time,  after  its  pretended  existence.  Her 
testimony,  read  before  the  referee,  taken  on  the  occasion  of  his 
application  for  discharge  in  bankruptcy,  states  that  she  had 
no  knowledge  as  to  how  her  husband  transacted  his  business, 
nor  what  business  he  had  been  engaged  in ;  they  never  had 
any  accounting  or  settling,  and  she  had  no  knowledge  of  what 
business  Hill  claimed  to  have  done  in  her  name.  She  had  no 
money  or  means  when  she  married  him,  except  some  furni- 
ture of  less  than  $200  in  value,  and  most  of  this  was  given  to 
her  by  her  husband  before  marriage,  and  no  one  had  given 
her  property  since  her  marriage.  Notwithstanding  the  docu- 
mentary evidence  of  the  bank  book,  that  Hill  continued  to 
transact  business  as  agent  for  McMullen  until  May,  1867,  his 
examination  on  oath  before  the  commissioner  in  bankruptcy 
was  also  read  in  evidence,  in  which  he  testified  that  he  com- 
menced acting  as  agent  of  his  wife  in  September,  1863  or 
1864. 

Without  pursuing  the  evidences  of  fraudulent  covering  of 
property,  and  the  contradictions  in  the  testimony  of  the  two 
defendants  by  documents,  and  by  their  examination  on  oath 
on  the  proceedings  in  bankruptcy,  omitting  all  other  evidence, 
it  may  be  said  that  there  is  nothing  to  contradict  these  palpa- 
ble implications  of  fraud  by  these  defendants,  legitimately  to 
be  drawn  from  the  case.  True,  Hill  swears  that  the  money 
with  which  the  real  estate  was  purchased  was  the  money  of 
his  wife ;  but  this  was  swearing  to  a  conclusion  based  upon 
the  assumption  that  the  money  earned  by  him  under  the  pre- 
tended agency  was  the  money  of  his  wife.  It  was,  in  fact, 

LANSING — VOL.  VI.          50 


394  CASES  I1ST  THE  SUPREME  COURT         [Sept., 

Shepherd  v.  Hill. 

swearing  that  his  transactions  were  honest.  It  would  seem 
that  the  referee,  whose  duty  it  was  to  draw  conclusions  from 
the  whole  case,  adopted  those  sworn  to  by  the  defendant  as  a 
witness.  Such  testimony  creates  no  conflict  of  fact;  and 
there  is  nothing  else  in  the  case  to  sustain  the  findings  of  the 
referee  but  a  reliance  upon  this  character  of  testimony  given 
by  the  defendant,  Hill.  The  whole  scheme  and  plan  of  con- 
ducting business  by  the  defendant,  William  D.  Hill,  carries 
upon  its  face,  and  in  all  its  features  and  arrangements,  a 
deliberate  design  of  so  living  and  covering  up  the  earnings 
and  accumulations  of  business  as  to  hinder,  delay  and  defraud 
creditors ;  and  at  the  same  time  to  secure,  in  the  name  of  the 
wife,  Mary  J.  Hill,  a  homestead  and  competence  for  both 
defendants.  To  a  court  familiar  with  weighing  testimony, 
and  of  judging  of  human  actions  by  observation  and  experi- 
ence, derived  from  the  multiplied  presentations  of  fraudulent 
experiments  of  this  nature,  the  case  at  bar  is  but  a  bald  and 
bungling  experiment.  With  far  less  of  evidence  of  the  fraud- 
ulent design  than  the  case  at  bar  presents,  the  bankrupt  court 
expressed  its  condemnation  of  the  attempt  to  cover  up  the 
estate  in  the  name  of  the  wife,  and,  for  that  reason,  refused 
a  discharge.  But  for  the  fact  that  a  referee  from  the  legal 
profession  had  indorsed  the  integrity  of  such  a  scheme  as  the 
case  presents,  this  court  could  have  been  saved  the  labor  of  a 
discussion  of  the  question.  It  appears  to  me  the  fraud  is  so 
transparent  that  the  attempt  to  sustain  it  here  falls  but  little 
short  of  a  reflection  upon  the  judgment  of  the  court.  I  have 
placed  my  opinion  much  upon  the  ground  of  the  absence  of 
evidence  to  sustain  the  report,  and  upon  the  necessary  impli- 
cations from  undisputed  facts. 

There  is,  besides  this,  two  rulings  of  the  referee — one  in 
striking  out  evidence  at  fols.  492,  403,  and  the  other  in  the 
admission  of  evidence  at  fol.  494 — which  I  think  erroneous, 
and  sufficient  to  authorize  a  reversal  of  the  judgment ;  but  I 
do  not  stop  to  discuss  them.  I  put  the  case  upon  the  ground 
above  discussed.  The  defendant's  counsel  rely  upon  the  case 
of  Alley  v.  Deyo  (44  N.  Y.,  344,  348).  If  the  facts  were 


1872.]  OF  THE  STATE  OF  NEW  YORK.  395 

Shepherd  «.  Hill. 

alike  it  would  be  good  authority;  but  they  are  dissimilar. 
There  were  evidences  of  good  faith  and  facts  which  were  suf- 
ficient to  be  submitted  to  the  jury,  and  which  the  judge 
withheld  from  them.  The  agency  was  open  and  notorious, 
the  goods  were  purchased  and  sold  as  such,  and  there  was  no 
other  evidence  from  which  fraud  could  be  inferred  than  that 
the  husband  managed  the  affairs  for  his  wife,  and  that  he 
was  insolvent.  The  judgment  was  reversed  on  the  ground 
that  the  judge  refused  to  submit  the  fact  of  intent  to  defraud 
to  the  jury.  This  was  a  sufficient  ground  for  reversal ;  and 
had  the  jury  found  a  fraudulent  intent,  the  case  could  not 
have  been  reversed  for  that  reason.  The  statute  makes  the 
question  of  fraud  one  for  the  jury.  The  judge  erred  in  taking 
it  from  them ;  and  the  argument  of  both  courts  is  that  it 
might  be  honest,  and  that  the  law  allows  such  transactions 
when  they  are  conducted  in  good  faith.  But  when  the  case 
is  before  a  referee,  and  the  appeal  is  from  his  conclusions,  this 
court  are  to  examine  the  whole  case ;  and  it  is  their  duty  to 
reverse  if  they  draw  different  conclusions  from  the  referee. 

I  am  unable  to  agree  with  him  in  this  case,  and  am,  there- 
fore, for  reversing  the  judgment,  ordering  a  new  trial  and 
vacating  the  order  of  reference,  costs  to  abide  the  event. 

DANIELS,  J.  I  concur  in  the  preceding  opinion ;  and,  in 
addition  to  the  reasons  given  therein  for  a  reversal  of  the 
judgment,  think  the  referee  erred  in  allowing  the  witness, 
Romer,  after  stating  the  manner  in  which  he  came  to  make 
the  loan,  to  add  his  opinion  or  conclusion  that  he  made  it  for 
the  accommodation  of  Mrs.  Hill. 

New  trial  granted. 


396  CASES  IN  THE  SUPREME  COURT       [March, 


Moore  ®.  Miller. 


LEVI  MOORE,  Appellant,  v.  ISAAC  MILLER  AND  THE  METRO- 
POLITAN NATIONAL  BANK,  Respondent. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

The  owner  of  a  certificate  of  indebtedness  to  him  for  $10,000  by  the 
State  made  a  written  transfer  upon  the  certificate  of  "  the  within 
described  amount,  say  $10,000."  Held,  that  he  could  not  recover  posses- 
sion of  the  certificate  from  the  assignee  of  his  transferee  upon  the 
ground  that  the  latter  had  agreed  to  return  it  in  certain  contingencies 
which  had  occurred,  and  of  fraudulent  representations  in  obtaining  the 
transfer,  the  assignee  having  no  actual  knowledge  of  the  agreement  or 
fraud.  • 

The  case  of  McNeil  v.  Tenth  National  Bank  (46  N.  Y.,  825)  held  applica 
ble  and  followed. 

THIS  was  an  appeal  by  the  plaintiff  from  a  judgment  entered 
upon  a  verdict  of  a  jury. 

The  plaintiff  brought  this  action  against  one  Isaac  Millei 
and  The  Metropolitan  National  Bank,  respondents,  to  reco- 
ver possession  of  a  certificate  of  indebtedness  of  the  State  of 
New  York  for  $10,000,  issued  prior  to  October  31,  1867,  the 
property  of  the  plaintiff,  which  the  plaintiff  alleged  he  was 
induced,  by  false  representations  of  Miller,  to  transfer  to  him 
upon  a  parol  agreement  between  plaintiff  and  Miller  that  it 
should  be  cashed  within  three  weeks,  and  if  not  cashed  within 
three  weeks  should  be  returned  to  plaintiff,  and  that  plaintiff 
would  thereupon  return  to  Miller  his,  Miller's,  check  for 
$3,000,  and  two  notes  of  one  "Williams,  indorsed  by  Miller, 
which  plaintiff  received  from  Miller  at  the  time  of  the 
transfer. 

The  said  certificate  was  in  the  following  form : 

CERTIFICATE  OF  INDEBTEDNESS. 

NEW  CAPITOL — LAWS  OF  1868,  CHAPTER  830. 

The  New  Capitol  Commissioners,  in  pursuance  of  the 
authority  in  them  vested  by  chapter  830  of  the  Laws  of  the 
State  of  New  York,  passed  May  19th,  1868,  have  taken,  as  a 
part  of  the  additional  land  authorized  to  be  taken  by  the 


1872.]          OF  THE  STATE  OF  NEW  YORK.  397 

Moore  v.  Miller. 

said  act  for  the  purposes  of  the  new  Capitol  and  the  public 
use  declared  in  said  act,  all  and  singular  the  premises  known 
and  described  as  follows,  to  wit :  A  lot  at  the  corner  of  State 
and  Hawk  streets,  in  the  ninth  ward  of  the  city  of  Albany, 
and  State  of  New  York,  and  known  as  No.  185  State  street ; 
extending  24^°^  feet  on  State  street,  and  54^-VV  feet  on  Hawk 
street,  and  also  a  smaller  lot  adjoining  on  the  northerly  side 
thereof  extending  IS-j^  feet  on  Hawk  street,  and  extending 
northerly  24yYo  feet  to  the  northerly  line  of  said  lot  No.  185, 
together  bounded,  northerly,  by  a  lot  of  William  H.  De  Witt ; 
easterly  by  Hawk  street ;  southerly  by  State  street ;  and  west- 
erly by  a  lot  of  Chauncey  P.  Williams  ;  and  not  having  been 
able  to  agree  with  the  owner  of  said  premises  for  fine  purchase 
thereof,  a  writ  of  inquiry  of  damages  was  issued  and  executed 
pursuant  to  the  provisions  of  article  4,  title  2,  chapter  9, 
of  the  third  part  of  the  Revised  Statutes,  and  by  such  inqui- 
sition it  was  found  that  Levi  Moore  is  the  owner  of  said  pre- 
mises, and  that  the  said  Levi  Moore  will  sustain  damages,  by 
reason  of  being  deprived  of  said  premises,  to  the  amount  of 
twenty  thousand  dollars,  which  sum  should  be  paid  to  the 
said  Levi  Moore,  therefor,  by  the  people  of  this  State.  It  is 
therefore  hereby  certified  that  the  State  of  New  York  is 
justly  indebted  to  the  said  Levi  Moore  in  the  said  sum  of 
ten  thousand  dollars,  lawful  money,  for  the  purchase-price  of 
the  said  premises,  to  be  paid  with  interest  from  date,  at  the 
rate  of  six  per  cent  per  annum,  this  certificate  representing 
one-half  the  amount  awarded  as  damages  to  said  Levi  Moore 
for  said  property. 

In  witness  whereof  the  said  commissioners  have  executed 
their  certificate,  this  1st  day  of  October,  A.  D.  1868. 
By  order  of  the  board. 

HAMILTON  HARRIS, 

Chairman. 
JAS.  TEBWTLLIGEB,  Secretary. 

This  certificate  the  plaintiff  transferred  to  the  said  Miller, 
on  the  31st  day  of  October,  1868,  in  the  following  form : 


398  CASES  IN"  THE  SUPREME  COURT       [March, 

Moore  t>.  Miller. 

$10,000. 

For  value  received,  I  hereby  transfer,  assign  and  set  over 
to  Isaac  Miller  the  within  described  amount,  say  ten  thou- 
sand dollars. 

LEYI  MOORE. 
ALBANY,  Oct.  31,  1868. 

Afterward,  and  on  the  23d  November,  1868,  the  said  Mil- 
ler transferred  the  said  certificate  to  the  defendant,  "  The 
Metropolitan  National  Bank,"  by  a  transfer  in  the  following 
form: 

For  value  received,  I  hereby  transfer,  assign  and  set  over 
to  The  Metropolitan  Nat.  Bank,  N.  Y.,  the  within  described 
amount,  say  ten  thousand  dollars. 

ISAAC  MILLER. 
NEW  YORK,  Nov.  23,  1868. 
$149  59 
10,000  00 


$10,149  59 
NEW  YORK,  Not).  23,  1868. 

After  issue  joined,  and  before  the  trial,  at  a  Special  Term 
of  the  Supreme  Court,  the  following  issues  of  fact  were  set- 
tled, to  be  tried  by  the  jury : 

1st.  Did  the  defendant  Miller  obtain  the  possession  of  the 
certificate  mentioned  in  the  complaint  by  false  pretence,  as 
charged  in  the  amended  complaint  ? 

2d.  Did  the  plaintiff  deliver  possession  of  said  certificate 
under  an  agreement  that,  in  case  said  certificate  was  not 
cashed  within  three  weeks,  the  defendant  Miller  should 
return  the  same,  and  the  assignment  thereof,  to  the  plaintiff, 
and  take  up  the  check  and  notes  as  charged  in  the  amended 
complaint  ? 

3d.  Did  the  title  to  the  certificate  remain  in  the  plaintiff 
after  the  possession  thereof  was  delivered  to  the  defendant 
Miller,  by  the  agreement  or  understanding  of  the  parties  ? 


1872.]  OF  THE  STATE  OF  NEW  YORK.  399 


Moore  v.  Miller. 


4th.  Was  the  said  certificate  absolutely  and  unconditionally 
assigned  by  plaintiff  to  defendant  Miller,  with  intent  that  the 
title  thereto  should  be  vested  in  said  Miller  ? 

5th.  Was  the  certificate  transferred  to  The  Metropolitan 
National  Bank  more  than  three  weeks  after  the  possession 
thereof  was  obtained  by  the  defendant  Miller  ? 

6th.  Did  The  Metropolitan  National  Bank,  the  defendant, 
become  the  purchaser  of  said  certificate  in  good  faith,  and 
without  notice,  as  claimed  in  the  answer  of  the  said  bank? 

7th.  If  you  find  for  the  plaintiffs,  do  you  find  against  both 
defendants  ? 

8th.  If  you  find  against  only  one  defendant,  which  one? 

On  the  trial  the  plaintiff  gave  evidence  tending  to  prove 
the  allegations  in  the  complaint  to  be  true,  viz.  :  that  Miller 
was  to  try  to  get  the  certificate  cashed,  and  if  he  failed  in  that 
within  three  weeks,  that  he,  Miller,  was  to  return  the  certifi- 
cate to  the  plaintiff,  which  he  failed  to  do;  and  also  that  his 
(Miller's)  representations,  as  to  his  responsibility  and  owner- 
ship of  property,  made  at  the  time  of  the  transfer,  were  false, 
and  that  he  was  at  the  time  insolvent.  The  plaintiff  took  at 
the  time  of  the  transaction  the  following  papers  : 

$2,000  00.  ALBANY,  Oct.  31,  1868. 

Three  months  after  date,  I  promise  to  pay,  to  the  order 
of  Isaac  Miller,  two  thousand  dollars,  at  The  First  National 
Bank  of  Albany,  value  received,  with  interest. 

|U.S^IatfcRey.8^np.|  JOSIAH    S.    WILLIAMS. 

(Indorsed,  Isaac  Miller,  Clyde,  N.  Y.    Isaac  Miller,  V.  P.) 

$5,000  00.  ALBANY,  Oct.  31,  1868. 

Six  months  after  date,  I  promise  to  pay,  to  the  order  of 
Isaac  Miller,  five  thousand  dollars,  at  The  First  National 
Bank  of  Albany,  value  received,  with  interest. 

JOSIAH  S.  WILLIAMS. 


(Indorsed,  Isaac  Miller,  Clyde,  N.  Y.     Isaac  Miller,  Y.  P.) 


400  CASES  IN  THE  SUPREME  COURT       [March, 


Moore  v.  Miller. 


No.  —  CLYDE,  N.  Y.,  Dec.  2,  1868. 

First  National  Bank  of  Clyde,  pay  to  Levi  Moore,  or  order, 
three  thousand  dollars. 

<  IT.  S.  Int.  Rev.  Stamp. )  TO  A    A  P    TVTTT  T  TTT? 

i   2  cents.    Canceled.    >  lD.il-ft.Vy   IVllljJLJliiv. 

$3,000.00. 

There  was  no  evidence  of  knowledge  on  the  part  of  the 
defendant,  The  Metropolitan  National  Bank,  of  the  terms  of 
the  agreement  between  plaintiff  and  Miller,  other  than  such 
as  appeared  in  the  transfer  upon  the  certificate. 

The  counsel  for  the  said  bank  then  moved  the  court  to  dis- 
miss the  complaint  as  against  it  on  the  ground,  among  others, 
that  the  plaintiff  had  proved  no  cause  of  action  against  the 
bank,  and  that  upon  the  plaintiff's  proof  the  bank  wasprima 
facie  a  lona  fide  purchaser  for  value  of  the  certificates  from 
Miller. 

.  This  motion  was  granted,  and  the  plaintiff  excepted  and 
appealed  from  the  judgment  entered  thereon.  The  jury- 
found  upon  all  the  issues  in  the  case,  against  the  defendant 
Miller,  and  rendered  a  verdict  against  him  for  $12,160.56. 

L.  Tremain,  for  the  plaintiff. 

Wm.  G.  Choate,  for  the  defendant,  The  Metropolitan 
National  Bank. 

Present — MILLER,  P.  J. ;  P.  POTTER  and  PARKER,  JJ. 

P.  POTTER,  J.  Since  the  recent  decision  in  the  Court  of 
Appeals,  of  the  greatly  mooted  question  that  arose  in 
McNeil  v.  The  Tenth  National  Bank*  it  seems  to  me  that 
we  can  hardly  regard  the  question  arising  in  this  case  as  an 
open  one.  It  is  claimed  that  the  whole  certificate  was  not 
transferred,  but  only  $10,000  of  it ;  but  the  obligations  given 
by  Miller  in  payment  clearly  imply  an  entire  purchase,  and 
the  plaintiff  in  his  evidence  shows  nothing  to  the  contrary. 

We  have  been  furnished  the  manuscript  of  the  opinion  deliv- 
ered in  that  case,  and  I  am  unable  to  distinguish  the  question 

See  46  N.  Y.,  325. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  401 


Moore  v.  Miller. 


to  be  decided  in  the  case  at  bar  from  the  principle  settled  in 
McNeil  v.  The  Tenth  National  Bank.  "We  may  assume  that 
the  plaintiff  has  been  greatly  defrauded  by  Miller ;  in  fact,  that, 
by  false  and  fraudulent  representations  and  pretences,  Miller 
obtained  from  him  the  possession  of  the  certificate  in  ques- 
tion ;  and  that,  by  his  (Miller's)  agreement,  he  was  to  return 
the  certificate  to  the  plaintiff  if  he  did  not  get  it  cashed  within 
three  weeks,  and  that,  by  the  secret  understanding  between 
the  plaintiff  and  Miller,  the  certificate  was  not  absolutely 
assigned  to  Miller,  though  it  was  absolute  in  form ;  and  fur- 
ther, that  Miller  did  not,  in  fact,  negotiate  the  certificate 
within  three  weeks,  according  to  that  agreement ;  for,  so  the 
jury  have  found.  Nay,  further,  we  may  assume  that  by 
reason  of  Miller's  fraudulent  acts  he  got  possession  of  this 
certificate,  and  that  plaintiff  was  entirely  innocent  in  the  trans- 
action, and,  by  reason  of  Miller's  insolvency,  unless  he  recov- 
ers in  this  action,  he  will  lose  his  demand  of  $10,000.  The 
plaintiff  does  not  claim  to  make  his  case  stronger  than  this. 
But  we  must  also  assume,  from  the  evidence  in  the  case, 
prima  facie,  that  the  bank,  in  their  negotiation  with  Miller, 
acted  in  like  good  faith,  and  with  like  integrity  and  inno- 
cence, and  that  if  the  plaintiff  recover  against  them,  they 
would  suffer  in  like  amount  by  the  fraud  of  Miller.  It 
would  then  be  a  contest  between  two  innocent  parties,  in 
which  one  must  of  necessity  suffer.  It  then  becomes  a  ques- 
tion of  law,  which  of  these  two  innocent  parties  must  bear 
the  loss.  Is  it  he  who  puts  in  motion  the  instrumentality, 
the  apparent  agency  which  occasions  the  loss,  or  he  who  with 
confidence  advances  his  means,  relying  upon  the  integrity  of 
the  transaction,  and  makes  the  advance  upon  the  faith  of  it  I 
By  well-established  rules  of  law,  clearly  the  latter.  Nor  is- 
this  inconsistent  with  that  other  and  well-conceded  rule,  tha»fc 
in  regard  to  the  title  of  property,  other  than  negotiable  com- 
mercial paper,  the  grantee  obtains  no  better  title  than  his 
grantor  had,  as  was  held  in  Hallard  v.  Burchard  (40  N-.  T., 
314.)  The  case  before  us  is  an  exception  to,  or  rather,  per- 
haps, is  distinguishable  from  that  case,  by  an  additional  fea,- 
LANSING  — VOL.  VL  51 


402  CASES  IN  THE  SUPREME  COURT        [March, 

Moore  v.  Miller. 

ture  connected  with  it.  In  the  case  before  us,  the  plaintiff, 
as  grantor,  executed  to  Miller,  one  of  the  defendants,  a  con- 
veyance, by  an  instrument  in  writing,  under  his  own  hand, 
purporting  to  be  for  a  valuable  consideration,  the  certificate 
in  question  ;  thus,  apparently,  conveying  away  from  himself 
all  title  thereto.  This  conveyance,  in  legal  effect,  clothed  Mil- 
ler with  the  apparent  power  of  absolute  alienation ;  and  under 
this  apparent  power,  Miller,  with  like  apparent  consideration, 
conveyed  the  said  certificate  to  the  defendant,  The  Metro- 
politan National  Bank,  parties  who  were  innocent  strangers 
to  the  secret  understanding  between  the  plaintiff  and  Miller. 
As  it  turns  out,  this  certificate  was  obtained  from  the  plaintiff 
by  a  gross  fraud  and  false  representations  on  the  part  of  Mil- 
ler as  to  his  solvency.  There  was  also  a  secret  understanding 
between  Miller  and  the  plaintiff,  that  the  sale  was  conditional, 
and  not  absolute.  True,  as  between  the  plaintiff  and  Miller, 
the  certificate  so  obtained,  while  it  remained  between  them, 
carried  no  title  to  Miller,  because  the  fraud  which  avoided  the 
contract  could  be  given  in  evidence,  notwithstanding  the 
absolute  nature  of  the  transfer  upon  its  face ;  but  when  the 
plaintiff,  by  his  own  voluntary  act,  clothed  Miller  with  the 
solemn  evidences  of  title,  the  absolute  power  of  sale  and  all 
the  indicia  of  ownership,  including  the  possession,  for  the 
very  purpose  of  allowing  him  to  make  a  transfer  of  this  cer- 
tificate, he  also  thereby  authorized,  if  he  did  not  invite,  the 
bank,  and  all  other  persons  who  chose  to  put  confidence  in 
this  instrumentality  or  agency,  to  make  the  purchase.  (Pick- 
ering v.  Bush,  15  East.  E,.,  41,  42,  &c.)  And,  if  made  in 
good  faith,  the  title  so  obtained  is  preferred,  in  law,  to  the  title 
claimed  through  the  secret  understanding  between  the  plain- 
tiff and  Miller.  (Saltus  v.  Everett,  20  Wend.,  267, 268 ;  Howry 
v.  Walsh,  8  Cow.,  238 ;  Rootv.  French,  IS  Wend.,  570.)  But 
further  discussion  of  this  question  is  unnecessary,  as  I  think. 
The  case  of  McNeil  v.  Tenth  National  Bank  (supra),  in  the 
Court  of  Appeals,  has  reconciled  what  had  been  before  regarded 
as  a  different  doctrine  in  other  reported  cases,  especially  that  in 
Bollard  v.  Burgett,  and  overrules  the  same  case  of  McNeil 


1872.]  OF  THE  STATE  OF  NEW  YORK.  403 

Terwilliger  v.  Beals. 

v.  Tenth  National  Bank,  reported  in  55  Barb.,  59.  Con- 
trolled by  the  decision  of  the  last  entitled  case,  in  the  Court 
of  Appeals,  and  adopting  the  distinctions  so  ably  and  clearly 
presented  therein  between  that  and  the  cases  supposed  to  have 
been  in  conflict,  I  am  clear  that  the  judgment  is  right,  and 
should  be  affirmed,  with  costs. 
Judgment  affirmed. 


WILLIAM   TERWILLIGER  et  al.,  Respondents,   v.   REUBEN  C. 
BEALS,  Appellant. 

(GENERAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

A  selling  factor  is  bound,  when  reasonably  requested,  to  make  and  present 
to  bis  principal  a  full  and  complete  statement  of  his  dealings  and  the 
accounts  between  them. 

Accordingly,  where  the  principal  applied  to  his  factor,  to  whom  he  had 
entrusted  goods  for  sale  under  an  agency  of  indefinite  duration,  for 
return  of  the  goods,  and  notified  him  of  a  termination  of  the  agency, 
and  the  factor  claiming  a  lien  for  advances  and  commissions  declined  to 
surrender,  and  upon  the  principal's  offer  to  pay  the  amount  of  the  claims, 
substantially  refused  to  make  a  statement  of  them, — Held,  that  the  lien 
was  forfeited,  and  the  principal  could  maintain  replevin  for  the  goods. 

Held,  also,  that  the  rules  in  relation  to  tender  as  between  debtor  and 
creditor  were  not  applicable. 

AN  appeal  from  a  judgment  in  favor  of  the  plaintiffs  on 
the  report  of  a  referee. 

The  action  was  replevin. 

The  plaintiffs  were  manufacturers  of  iron  safes  in  the  city 
of  New  York,  and  the  defendant  was  their  selling  factor  in 
the  city  of  Syracuse.  The  plaintiffs  commenced  sending  the 
defendant  safes  for  sale  in  June,  1868,  upon  the  following 
terms :  The  safes  were  to  be  sold  at  the  list  price  fixed  by  the 
plaintiffs,  and  the  defendant  was  to*  have  twenty  per  cent 
thereof  for  his  compensation  and  expenses ;  the  plaintiffs  to 
pay  the  freight  to  the  store  of  the  defendant ;  and  all  the  other 
charges  and  expenses  to  be  paid  by  the  defendant,  and  he  to 
guarantee  payment  of  sales. 


404  CASES  IN  THE  SUPREME  COURT      [June, 

Terwilligcr  v.  Bealg. 

On  the  20th  day  of  April,  1870,  there  were  two  safes  in 
the  defendant's  possession,  sent  forward  under  this  arrange- 
ment ;  both  received  by  him  in  March  previous.  The  price 
list  of  one  was  $170 ;  of  the  other,  $180. 

Upon  that  day  the  plaintiffs,  at  Syracuse,  gave  notice  to 
the  defendant  that  they  terminated  the  arrangement  existing 
between  them,  demand  the  safes,  which  the  defendant  refused 
to  deliver  up ;  and  this  action  was  commenced  June  20, 1870. 

The  defendant  claimed  that,  by  the  terms  of  the  contract, 
he  was  to  have  the  exclusive  agency  at  Syracuse.  This  the 
plaintiffs  deny,  and  the  referee  does  not  find  upon  the  ques- 
tion. At  the  time  the  safes  in  question 'were  forwarded  to 
the  defendant,  one  Gifford  was  selling  safes  in  Syracuse  aa 
the  plaintiffs'  agent.  By  the  terms  of  the  contract  between 
the  parties  nothing  was  agreed  upon  as  to  the  length  of  time 
defendant  should  act  as  plaintiffs'  factor ;  nor  was  it  provided 
that  any  previous  notice  should  be  given  of  its  termination 
by  either  party. 

Upon  the  trial  it  appeared  that  the  defendant  had  advanced 
upon  these  safes  $26.51  freight  and  cartage.  The  defendant 
claimed  a  commission  on  a  safe  sold  to  a  Mr.  Fenton  by  Gif- 
ford, on  the  ground  that  he. commenced  the  negotiation  for 
the  sale.  The  questions  litigated  before  the  referee,  and  dis- 
cussed on  the  argument  of  this  appeal,  relate  to  the  defend- 
ant's lien  on  the  safe,  and  whether  the  same  was  extinguished 
by  the  tender  of  the  plaintiffs  or  lost  by  the  conduct  of  the 
defendant  himself;  and  the  evidence  on  these  points  is 
referred  to  in  the  opinion  of  the  court. 

Wm.  C.  Ituger,  for  the  appellant. 

L.  W.  Hall,  for  the  respondent. 

Present — JOHNSON,  P.  J. ;  TALOOTT  and  BAKKEK,  JJ. 

BARKER,  J.  That  a  selling  factor  has  a  lien  on  the  goods 
of  the  principal,  in  his  hands,  as  a  security  for  his  advances, 


1872.]          OF   THE  STATE  OF  NEW  YORK.  405 

Terwilliger  «.  Beals. 

commissions  and  liabilities,  personally  incurred  in  the  busi- 
ness carried  on,  is  an  undisputed  proposition.  Before  the 
principal  can  reclaim  his  property  from  the  hands  of  his 
agent,  he  must  fully  discharge  such  lien  by  payment,  or,  what 
in  law  is  equivalent  to  payment,  tender  the  amount  justly 
due  the  factor.  The  lien  may  also  be  discharged  by  some 
wrongful  act  of  the  agent,  or  breach  of  duty  on  his  part. 
That  the  defendant  had  a  lien  on  these  safes,  at  the  time  of 
the  demand  and  refusal,  is  established  by  the  evidence  and 
findings  of  the  referee.  That  the  plaintiffs  made  a  full  and 
technical  tender  of  the  amount  of  such  lien,  as  the  same  was 
established  on  the  trial,  is  not  claimed. 

The  precise  point  relied  upon  by  the  plaintiffs  is  that  the 
defendant,  by  his  conduct,  waived  and  relinquished  such  lien ; 
and  that  they  were  entitled  to  the  possession  of  the  property 
without  a  payment  of  his  advances  and  commissions.  This 
proposition  seems  to  be  fully  supported  by  the  evidence  and 
circumstances  disclosed  on  the  trial. 

It  seems  too  clear  for  discussion  that  a  selling  factor,  like 
other  agents,  is  in  duty  bound,  whenever  reasonably  requested 
so  to  do,  to  make  and  present  to  his  principal  a  full  and  com- 
plete statement  of  the  dealings  and  state  of  the  accounts 
bet \veen  the  parties,  to  the  end  that  the  principal  make 
known  concerning  his  own  affairs,  and,  in  some  instances,  as 
in  this,  to  ascertain  the  obligations  he  may  be  under  to  his 
agent,  and  how  he  may  proceed  to  terminate  the  agency  and 
reclaim  his  property.  The  information  sought  by  a  demand 
of  a  statement  is  presumed  to  be  solely  with  the  agent;  and 
that  the  principal  is  ignorant  of  the  true  state  of  affairs,  as 
connected  with  the  business  confided  to  his  agent.  Such 
presumption  must  be  the  foundation  of  this  unyielding  rule. 

In  this  case  it  does  not  appear  that  the  plaintiffs  knew  the 
extent  of  the  defendant's  lien,  when  one  of  them  had  an 
interview  with  the  defendant,  with  the  avowed  object  of  ter- 
minating his  agency.  Nor  could  they  have  known  the  exact 
amount  of  it,  so  as  to  make  a  tender  of  the  same.  The  very 
nature  of  the  defendant's  claim,  as  sought  to  be  established  on 


406  CASES  IN  THE  SUPREME  COURT         [June, 


Terwilliger  v.  Beals. 


the  trial,  and  not  disclosed  before  the  action  was  commenced, 
made  it  impossible  for  the  plaintiffs  to  know  the  extent  and 
justice  of  it.  The  defendant  claims  a  lien  for  freight  paid  on 
these  two  safes,  and  for  prospective  commissions  on  a  sale  of 
the  same.  Now  -when  the  plaintiffs,  at  the  defendant's  own 
place  of  business,  offered  to  pay  him  his  liens  and  charges,  he 
was  bound  to  inform  them  of  the  amount  of  the  advances 
made  on  the  property,  and  the  state  of  negotiations  for  the 
sale  of  the  safes,  or  either  of  them,  if  any  were  on  foot,  that 
they  might  examine  into  the  same,  and  ascertain  whether 
they  were  well  founded  or  not ;  and,  if  found  to  be  so,  then 
the  exact  sum  to  be  paid  would  be  before  them. 

On  the  trial  "Wm.  II.  Terwilliger,  one  of  the  plaintiffs,  tes- 
tified, in  substance,  as  follows :  "  I  asked  defendant  for  the 
possession  of  the  safes.  He  said  he  would  not  give  them  up 
until  paid  for.  I  told  him  I  wanted  to  close  up  the  business 
with  him,  and  wanted  either  the  safes  or  the  pay  for  them ; 
and  he  said  he  would  not  pay  for  the  safes  until  he  sold  them. 
He  said  he  had  been  to  some  expense  for  freight  on  them. 
I  told  him  I  was  ready  to  pay  any  charges  on  them,  and  asked 
him  how  much.  He  said  he  did  not  know;  that  possession 
was  nine  points  in  law,  and  that  he  had  these  nine  points, 
and  that  he  was  going  to  keep  them.  I  told  him  that  I  did 
not  want  any  trouble,  and  hoped  he  would  give  them  up ;  and 
that  if  he  did  not  I  should  commence  proceedings  to  get 
them.  He  said  he  would  take  counsel.  I  said,  all  right,  and 
that  I  would  give  him  one  hour  to  do  so.  He  did  so.  Upon 
his  return  I  took  out  my  money  and  asked  him  what  his 
charges  were,  and  that  I  was  ready  to  pay  him.  He  refused 
to  take  it,  and  said  he  had  been  advised  to  keep  the  safes ; 
and  thereupon  I  commenced  this  action."  This  witness,  on 
his  cross-examination,  gave  further  evidence  showing  his 
offer  to  pay  any  charges  the  defendant  might  have. 

The  defendant,  who  was  examined  as  a  witness  in  his  own 
behalf,  testified  that  the  plaintiff,  AVm.  H.  Terwilliger,  said 
to  him  that  he  would  send  for  the  safes.  "  I  then  said,  you  can 
have  them  by  paying  charges.  He  said  he  should  come  and 


1872.]  OF  THE  STATE  OF  NEW  YORK.  4Q7 

Terwilliger  v.  Beals. 

take  tliem.  lie  then  took  out  his  money  and  said,  I  will  pay 
your  charges.  I  told  him  I  did  not  know  what  my  charges 
were  until  I  hunted  up  my  bills;  but  that,  before  I  did  any- 
thing about  it,  I  would  take  counsel.  He  did  not  offer  any 
money.  I  then  went,  saw  counsel  and  went  back.  He  asked 
me  what  I  had  made  up  my  mind  to  do.  I  told  him  that  I 
should  hold  the  safes  until  I  was  fairly  settled  with.  He  did 
not  say  anything  about  paying  me  then,  and  took  no  money 
out.  I  heard  no  more  from  him  until  he  came  to  my  house 
with  the  sheriff."  Upon  the  trjal  the  defendant  made  no 
claim  that  he  had  at  any  time  presented  an  account  of  his 
advances,  or  the  amount  of  commissions  claimed.  The  referee 
found  as  a  fact  that,  at  the  time  of  the  demand,  the  plaintiffs 
offered  to  pay  the  freight  and  charges  incurred  by  the  defend- 
ant on  the  same. 

The  defendant's  conduct  put  him  in  fault,  and  he  omitted 
a  plain  and  reasonable  duty  he  owed  the  plaintiffs;  and 
thereby  such  lien  as  he  may  have  had  on  the  goods  was 
waived  and  extinguished.  He  could  no  longer  claim  to  hold 
the  goods,  under  his  lien,  after  his  omission  and  refusal  to 
state  the  amount  of  his  claim.  The  learned  counsel  for  the 
defendant  has  sought  to  make  applicable  to  this  case  the  rules 
in  relation  to  tenders,  that  govern  as  between  debtor  and 
creditor.  They  do  not  fairly  apply  here. 

It  is  unnecessary  to  consider  whether,  upon  the  trial,  the 
defendant  made  a  case  entitling  him  to  commissions  or  not, 
on  one  or  both  of  the  safes.  The  single  question  on  the  trial 
was,  had  the  defendant,  by  his  own  conduct,  lost  his  special 
property  in  the  safes ;  and  were  the  plaintiffs  entitled  to  pos- 
session under  and  by  virtue  of  their  general  property  in  the 
same.  Although  the  plaintiffs  have  reclaimed  their  property, 
they  are  personally  liable  to  the  defendant  for  any  advance 
or  commissions  due  him.  The  judgment  is  affirmed. 

Judgment  affirmed. 


408  CASES  IN  THE  SUPREME  COURT          [June, 


Beals  v.  Stewart. 


MARY  E.  BEALS,  Appellant,  v.  JOEL  F.  STEWART,  Respondent. 
(GENEKAL  TERM,  FOURTH  DEPARTMENT,  JUNE,  1872.) 

The  purchaser  of  a  mill  and  mill-pond,  with  an  casement  for  running  the 
water  from  the  pond  through  a  race-way  over  adjoining  land,  is  not 
restricted  in  maintaining  the  race  to  the  condition  in  which  it  was  at  the 
time  of  his  purchase,  but  acquires  the  right  to  make  necessary  improve- 
ments to  the  full  enjoyment  of  the  easement. 

"Where  the  purchaser  removed  deposits  in  the  race-way  to  the  sides  thereof, 
and  lowered  its  bed  to  its  original  depth,  and  below  the  depth  at  the  time 
of  the  purchase,— Held,  that  the  removal  being  a  necessary  improve- 
ment to  the  right  to  discharge  the  waters  from  the  pond,  he  was  not 
liable  in  trespass  to  the  owner  of  the  servient  estate. 

Held,  also,  that  the  act  was  in  the  nature  of  a  repair  to  the  ditch  and 
authorized  as  such. 

The  right  to  use  a  pond  as  a  mill-pond  includes  the  right  to  float  logs  in  the 
pond  for  the  use  of  the  mill. 

While  the  servient  estate  belonged  to  the  plaintiff's  grantee  an  encroach- 
ment was  made  thereon  by  the  dam  of  the  dominant  owner, — Held,  that 
the  plaintiff  could  not  maintain  trespass,  but  must  sue  in  ejectment. 

THIS  is  an  appeal  from  a  judgment  on  the  report  of  a 
referee. 

The  evidence  is  not  set  forth  in  the  bill  of  exceptions, 
which  simply  states  that  the  evidence  tended  to  prove  the 
facts  found  by  the  referee. 

The  action  is  trespass,  for  entering  upon  the  plaintiff's 
premises,  digging  up  the  soil,  and  placing  logs  and  other 
obstructions  thereon. 

The  judgment  was  for  the  defendant,  and  the  plaintiff 
appeals  therefrom. 

Present — MULLIN,  P.  J. ;  TALCOTT  and  BARKER,  JJ. 

BARKER,  J.  In  the  year  1856  Benjamin  Chamberlain  was 
the  owner  of  the  locus  in  quo,  together  with  other  lands  adja- 
cent thereto;  all  situated  upon  a  mill  stream.  A  mill-dam 
was  then  constructed  across  the  stream,  and  the  mill-pond, 
thus  formed,  flowed  a  portion  of  the  lands  beyond  the  natural 
banks  of  the  stream.  Below  the  dam,  and  some  rods  from 


1872.]  OF  THE  STATE  OF  NEW  YORK.  409 


Beals  «.  Stewart. 


the  stream,  there  was  a  saw-mill,  propelled  by  the  waters 
collected  in  the  dam.  The  water  used  escaped  by  a  tail-race, 
several  rods  in  length,  connecting  with  the  natural  stream. 

Chamberlain  first  conveyed,  in  fee,  a  portion  of  these  lands, 
upon  which  the  saw-mill  is  erected,  together  with  the  mill- 
pond,  and  the  privilege  of  keeping  the  water  to  a  certain  height, 
with  all  and  singular  the  hereditaments  and  appurtenances 
thereto  belonging  or  in  anywise  appertaining. 

The  defendant  has  succeeded  to  this  title,  and  is  in  posses- 
sion, using  and  operating  the  saw-mill. 

Chamberlain  then  conveyed  the  remaining  portions  of  this 
tract  to  other  parties ;  and  there  is  embraced  therein  the  par- 
cel of  land  of  about  one  acre,  over  which  the  tail-race  is 
located.  The  plaintiff  now  owns  and  occupies  this  parcel  of 
land. 

The  mill  was  erected  and  the  tail-race  dug  in  the  year 
1843  ;  and  between  that  time  and  the  conveyance  of  the  mill 
property  by  Chamberlain  the  race  filled  up  to  the  depth  of 
six  inches,  by  the  operation  of  freshets  in  the  stream.  In 
1870  the  defendant  entered  upon  the  plaintiff's  lands,  and 
cleared  out  the  tail-race  by  throwing  out  this  deposit  of 
earth,  leaving  the  same  on  the  banks  of  the  race ;  thus  open- 
ing the  race  to  its  original  depth  and  no  lower.  For  this  act 
the  plaintiff  seeks  to  recover  in  this  action. 

The  referee  finds  "  that  such  removal  of  earth  was  neces- 
sary for  the  proper  use  of  said  mill  by  the  defendant ;  and 
that  in  so  doing  the  defendant  did  not  lower  the  bed  of  the 
tail-race  below  or  deeper  than  it  was  originally  constructed," 
and  did  no  unnecessary  injury  to  the  plaintiff's  lands ;  and 
did  nothing  that  was  not  required  to  protect  the  tail-race 
from  injury. 

It  is  not  disputed  by  the  plaintiff  but  that  the  defendant 
has  an  easement  over  his  land  for  the  purpose  of  running  the 
water  from  the  saw-mill  to  the  creek. 

He  insists,  however,  that  such  privilege  can  only  be  right- 
fully enjoyed  by  the  defendant  in  keeping  the  race  in  the 
exact  condition,  as  to  width  and  depth,  as  well  as  general 

LANSING — VOL.  VI.         52 


410  CASES  IN  THE  SUPREME  COURT          [June, 

Beals  v.  Stewart. 

course,  as  the  same  was  in  fact  on  the  day  Chamberlain 
deeded  the  mill  property. 

The  right  acquired  by  the  dominant  estate  over  the  servi- 
ent  estate,  in  virtue  of  Chamberlain's  deed,  was  a  discharge 
of  the  water  used  at  the  mill  over  the  land  in  question.  The 
owner  of  the  dominant  estate  may  at  any  time  do  that  which 
is  necessary  to  enjoy  the  easement  and  make  the  same  effect- 
ual ;  and,  as  an  incident  thereto,  keep  the  same  in  repair  and 
fit  for  use.  (Washburn  on  Easements,  pp.  304:,  566 ;  Pres- 
cott  v.  White,  21  Pick.,  341.) 

It  is  to  be  observed,  in  considering  what  the  owner  of  this 
easement  may  do,  within  the  above  rule,  that  the  grant  does 
not,  in  terms,  prescribe  the  nature  and  dimensions  of  the 
ditch  to  be  used  in  carrying  away  the  water.  The  change  of 
machinery,  and  alteration  of  the  mode  of  using  the  power  on 
the  dominant  estate,  might  necessitate  a  change  in  the  struc- 
ture of  and  require  greater  depth  in  the  tail-race ;  then  such, 
owner  can,  of  right,  do  such  things.  On  the  other  hand,  the 
servient  estate  may  advance  in  value,  and  be  used  for  pur- 
poses very  different  than  those  to  which  it  was  applied  when 
the  burden  was  first  imposed  upon  it.  In  such  changed  cir- 
cumstances the  owner  of  the  easement  would,  doubtless,  be 
required  to  keep  the  race  in  better  repair,  and  maintain  it  by 
a  different  structure  than  when  the  use  was  first  enjoyed,  if 
required,  so  as  not  to  do  unnecessary  injury  to  the  land- 
owner. It  follows,  that  the  proposition  urged  by  appellant 
cannot  be  adopted  as  the  law  of  this  case. 

We  are  of  the  opinion  that  the  act  of  the  defendant,  in 
sinking  the  race  to  its  original  depth,  is  justified,  under  the 
finding  of  the  referee,  as  a  necessary  improvement,  to  the  full 
enjoyment  of  the  right  to  discharge  water  over  the  plaintiff's 
land.  Besides,  it  is  very  plain  that  the  removal  of  the  earth 
was  an  act  in  the  nature  of  a  repair  to  the  ditch. 

The  plaintiff  also  complains  that  floating  saw-logs  in  the 
mill-pond  is  a  user  not  secured  by  the  grant  under  which  the 
defendant  claims.  The  plaintiff  is  the  owner  of  the  fee  of 
the  land  flooded  by  the  mill-pond ;  but  the  right  to  use  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  411 

Pechner  ».  The  Phoenix  Insurance  Co. 

same  for  a  mill-pond  gives  the  right  to  float  logs  therein  for 
the  use  of  the  mill.  It  is  quite  a  customary  way  of  moving 
logs  into  the  mill,  to  use  the  pond  as  a  boom,  and  then  run 
them  through  the  head-race  to  the  saw-carriage.  Such  use 
nowise  increases  the  burden  imposed  on  the  lands ;  and  in 
this  instance  it  is  impossible  to  see  how  the  owner  has  been 
in  the  least  injured  or  disturbed. 

Before  Chamberlain  conveyed  the  lands  owned  by  the 
plaintiff  the  defendant  altered  the  south-east  corner  of  the 
mill-dam,  and  a  section  of  it  was  constructed  on  lands  then 
owned  by  Chamberlain.  For  this  act  the  plaintiff  cannot 
maintain  trespass ;  her  remedy  is  ejectment. 

The  judgment  appealed  from  is  affirmed,  with  costs. 

Judgment  affirmed. 


ISIDOR  PECHNER  v.  THE  PHOSNIX  INSURANCE  COMPANY. 
(GENERAL  TERM,  THIRD  DEPARTMENT,  JUNE,  1872.) 

To  entitle  a  defendant  to  removal  of  a  cause  into  the  United  States  Cir- 
cuit Court,  under  the  act  of  1789,  §  12  (1  Stat.,  79),  he  must  show  the  plain- 
tiff a  citizen  of  another  State  on  the  day  of  the  commencement  of  the 
action.  A  petition  for  removal  does  not  meet  this  requirement  by  stating 
that  the  plaintiff  is  a  citizen  of  another  State. 

Nor  is  it  sufficient  if  the  plaintiff  appear  to  be  a  resident  in  the  State  ;  he 
must  be  shown  a  citizen  as  well. 

General  agents  of  an  insurance  company  have  authority  to  waive  a  condi- 
tion that  other  insurances  shall  be  indorsed  on  its  policies. 

An  examination  of  the  policy  issued  by  the  company  by  its  agent  in  con- 
nection with  other  policies  on  the  insured  property,  and  his  assertion  to 
the  insured  that  the  insurance  is  valid, — Held,  a  waiver  of  the  require- 
ment that  the  other  insurances  shall  be  indorsed. 

do,  also,  failure  of  the  general  agent  to  object  to  the  omission  of  the 
indorsement  of  other  insurances  upon  notice  thereof,  on  consenting  to  an 
assignment  by  the  assured  or  renewal,  is  a  waiver  of  the  condition. 

Assent  in  such  case  to  certain  insurances  extends  also  to  new  and  different 
insurances  in  lieu  of  them  taken  at  their  expiration  for  the  same  aggre- 
gate amount. 


412  CASES  IN  THE  SUPREME  COURT     •     [June, 

Pechner  v.  The  Phoenix  Insurance  Co. 

THIS  action  was  brought  to  recover  a  loss  arising  under  a 
policy  of  insurance  issued  by  the  defendant  through  its 
agency  at  Elmira,  to  D.  Strauss  &  Co.,  on  the  31st  day  of 
March,  1864.  By  its  terras  the  defendant  agreed  to  insure 
the  assured  against  loss  and  damage  by  fire  to  the  amount  of 
$2,000,  on  their  stock  of  goods  contained  in  the  building 
known  as  157,  on  the  south  side  of  Water  street  in  Elmira. 
This  policy  contained  the  statement :  "  Other  insurances 
$2,000."  The  insurance  commenced  at  the  date  of  the 
policy,  and  extended  to  the  31st  day  of  March,  1865.  The 
policy  contained  the  provision,  that  "  If  the  assured  shall 
have,  or  shall  hereafter  make,  any  other  insurance  on  the 
property  hereby  insured,  or  any  part  thereof,  without  the  con- 
sent of  the  company  written  hereon,  this  policy  shall  be 
void."  The  insured  had  other  insurance  on  the  same  pro- 
perty amounting  to  the  sum  of  $5,500. 

During  the  year  mentioned  in  the  first  renewal  of  the 
policy,  the  assured  sold  out  the  property  insured  and  assigned 
the  policy  itself  to  the  plaintiff.  At  that  time,  according  to 
the  testimony  of  Strauss,  he  and  the  plaintiff  called  upon 
Perry  &  Scott,  who  were  admitted  to  be  the  local  agents  of 
the  defendant  at  Elmira,  in  order  to  secure  consent  for  the 
transfer  of  the  property  and  the  policy  to  the  plaintiff,  and 
its  continuance  as  an  insurance  to  him.  This  witness  testi- 
fied that  he  had  the  other  policies  with  him,  all  the  four  poli- 
cies, and  told  Scott  he  had  sold  out  to  the  plaintiff,  and 
"  wanted  him  to  sign  over  these  policies ;  so  he  said  all  right, 
and  Pechner  took  the  policies,  all  four  policies,  and  gave 
them  to  him,  and  told  him  he  wished  him  to  see  if  they  were 
all  correct ;  he  wanted  to  be  sure  about  it,  and  took  his  and 
signed  it  over,  and  Scott  took  the  policies  and  examined 
them ;  he  opened  them  and  looked  at  them,  and  took  out  his 
and  made  the  transfer  of  it ;  he  wrote  his  consent  on  the 
back  of  it,  and  Pechner  asked  him  to  see  whether  I  charged 
him  too  much  for  the  policies ;  he  said  he  could  not  read ;  and 
Scott  looked  at  them,  and  Mr.  Scott  told  him  I  charged  him 
somewhere  about  right."  "  When  Scott  examined  the  poli- 


I 

1872.]  OF  THE  STATE  OF  NEW  YORK.  413 

Pechner  v.  The  Phoenix  Insurance  Co. 

cies  and  handed  them  back  he  said,  there,  you  are  all  right ; 
now,  this  is  all  you  want,  and  we  went  off."  "  Scott  said  we 
had  to  go  to  Ayers  with  the  other  policies  and  get  his  con- 
sent." Upon  his  cross-examination  the  witness  testified : 
"  We  didn't  say  anything  about  consenting  to  $5,500  other 
insurance  when  we  called  on  Perry  &  Scott  to  get  their  con- 
sent to  the  assignment  of  this  policy.  When  I  got  my 
renewal  in  March,  1865,  I  said  nothing  about  the  other  insur- 
ance I  had  on  my  property."  "  I  never  asked  Perry  &  Scott 
to  consent  to  this  §5,500  other  insurance." 

The  plaintiff  was  also  sworn  and  examined  concerning  the 
same  interview  and  transaction.  He  said  that  Strauss  took 
the  four  policies  when  they  went  to  Perry  &  Scott's  office. 
That  Strauss  there  said  to  Scott :  "  Mr.  Scott,  I  have  sold  out 
that  stock  of  goods  to  Mr.  Pechner ;  there  is  the  policy  on  the 
goods  Mr.  Pechner  bought  of  me.  Will  you  please  pick  out 
yours  from  the  policies  and  sign  it  over  to  Mr.  Pechner ; 
and  so  Mr.  Scott  took  the  policies  and  opened  them,  and  I 
asked  Mr.  Scott,  will  you  please  look  them  over  and  see  if 
they  are  all  right,  because  I  can't  read  English,  I  can  read 
newspapers,  but  not  writing,  so  I  leave  it  to  you  to  see  if 
everything  is  all  right ;  and  Scott  looked  them  over  and 
signed  this  policy  over  to  me,  and  folded  them  up  and  gave 
them  back  to  me  and  said,  '  Mr.  Pechner,  these  policies  are  all 
right;'  Scott  said  we  must  have  the  other  policies  signed 
over  too." 

The  agent,  Scott,  testified  that  he  consented  to  the  assign- 
ment of  the  policy  in  suit,  but  in  substance  denied  the  evi- 
dence of  these  witnesses,  that  he  had  examined  the  other  poli- 
cies and  declared  the  policies  to  be  right. 

The  policy  in  suit  was  renewed  by  those  local  agents  by  a 
written  renewal  in  the  usual  form  made  use  of  for  that  pur- 
pose, on  two  different  occasions.  First  to  Strauss  &  Co.,  on 
the  thirty-first  day  of  March,  1865,  for  one  year,  and  secondly 
to  the  plaintiff,  at  the  expiration  of  that  time,  for  one  year 
from  the  thirty-first  day  of  March,  1866,  and  the  premium 
received  for  each  renewal.  At  the  time  of  the  last  renewal, 


414  CASES  IN  THE  SUPREME  COURT          [Juno, 

Pechner  ».  The  Phoenix  Insurance  Co. 

the  plaintiff  testified  that  he  had  the  four  policies  together, 
that  he  handed  them  to  Scott  to  see  when  they  run  out,  and 
he  opened  all  four  of  the  policies  to  see  when  they  ran  out. 
This  witness  also  testified  that  he  removed  to  another  store 
in  April,  1866 ;  that  he  went  to  Scott  to  secure  his  consent, 
and  that  Scott  then  took  the  four  policies  and  wrote  down  in 
each  the  number  of  the  store.  The  body  of  the  policy  in  suit 
contains  a  consent  to  the  removal. 

The  other  policies  issued  to  Strauss  &  Co.  were  in  the  North- 
western Insurance  Company,  for  $1,000;  in  the  Home,  of 
New  York,  for  $3,000,  and  the  other  in  the  Hartford  Insur- 
ance Company,  for  $1,500.  They  were  issued  by  Ayers,  as 
agent,  and  when  they  expired  he  issued  three  other  policies 
to  the  plaintiff  in  their  place,  with  his  consent.  These  other 
policies  are  as  follows  :  One  in  the  North  American  Insur- 
ance Company  for  $2,000,  one  in  the  Arctic  Insurance  Com- 
pany for  $1,500,  and  one  in  the  National  Insurance  Company 
of  Boston  for  $2,000.  The  plaintiff  testified  that  some  time 
in  the  summer  he  took  these  new  policies  to  Scott,  and  asked 
Scott  if  these  insurances  were  good  and  all  right.  He  opened 
them  and  looked  them  over,  and  said  they  were  all  right. 
Scott  denied  the  statements  of  the  plaintiff  detailing  the  inter- 
view claimed  to  have  been  had  with  him  concerning  these  new 
policies,  as  well  as  those  relating  to  the  three  policies  in  the 
other  companies. 

A  loss  within  the  terms  of  the  policy  was  shown  to  have 
been  sustained  by  the  plaintiff  during  the  year  included  in  its 
renewal  to  him. 

The  defendant  also  showed  that  an  application  had  beea 
made,  at  the  time  of  its  appearance  in  the  action,  for  the 
removal  of  the  cause  to  the  Circuit  Court  of  the  United  States 
on  the  ground  that  the  parties  were  citizens  of  different 
States.  This  application  was  denied.  And  the  defendant 
insisted  that  the  court  lost  jurisdiction  of  the  action  by  the 
making  of  that  application. 

Various  exceptions  were  taken  to  the  rulings  of  the  court 
during  the  progress  of  the  trial  at  the  Circuit,  and  also  to  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  415 

Pechner  v.  The  Phoenix  Insurance  Co. 

charge.  The  jury  found  for  the  plaintiff;  and  the  defendant's 
exceptions  were  ordered  to  be  first  heard  at  the  General  Term, 
and  judgment  in  the  meantime  suspended. 

J.  B.  Perkins,  for  the  defendant. 
S.  B.  Tomlinson,  for  the  plaintiff. 
Present — P.  POTTER,  P.  J.,  PARKER  and  DANIELS,  JJ. 

DANIELS,  J.  The  petition  upon  which  the  application  was 
made  for  the  removal  of  this  action  into  the  United  States 
Circuit  Court,  stated  that  the  suit  was  commenced  by  the 
service  of  a  summons  and  complaint,  on  or  about  the  first  day 
of  June,  1867.  And  it  afterward  avers  that  the  plaintiff  is  a 
citizen  of  the  State  of  New  York.  The  petition  is  dated  the 
eleventh,  and  it  was  sworn  to  on  the  twelfth  day  of  June,  in 
the  year  1867.  These  averments  did  not  show  the  plaintiff  to 
have  been  a  citizen  on  the  day  when  the  action  was  commenced ; 
and  that  should  have  been  shown  to  have  been  the  fact  to  enti- 
tle the  defendant  to  the  removal  of  the  action  into  the  United 
States  Circuit  Court.  (1  U.  S.  Statutes  at  Large,  79,  §  12.) 
lie  might  very  well  have  been  a  citizen  on  the  day  when  the 
petition  was  dated,  and  still  not  have  been  so  when  he  com- 
menced his  action.  Such  changes  are  by  no  means  uncommon 
under  the  naturalization  laws  of  the  United  States.  The  state- 
ment made  in  the  oath  to  the  complaint,  describing  the  plain- 
tiff as  of  Chemung  county,  does  not  change  the  case.  For  he 
could  have  been  of  that  county  and  a  resident  in  it  without 
being  a  citizen  of  the  State.  It  is  not  every  resident  in  the 
State  that  can  properly  be  designated  as  one  of  its  citizens. 
That  term  must  be  limited  to  such  residents  as,  in  addition 
to  the  fact  of  residence,  possess  the  rights  and  privileges  pf 
citizens.  But  even  if  the  statement  should  be  held  to  an  alle- 
gation of  citizenship,  it  would  not  advance  the  position  of  the 
defendant.  For  the  complaint  contained  in  the  case  does  not 
appear  to  have  been  sworn  to  until  the  fifth  of  June,  in  the 


416         CASES  IN  THE  SUPREME  COURT  [June, 

Pechner  v.  The  Phoenix  Insurance  Co. 

year  1869,  nearly  two  years  after  the  action  was  commenced. 

The  jurisdiction  of  the  court  was  clearly  unaffected  by  the 
proceedings  taken  for  the  removal  of  the  cause.  And  the 
defendant's  exception  depending  upon  the  ruling  made  con- 
cerning that  portion  of  the  case  must,  therefore,  be  overruled. 
(Ilolden  v.  Putnam  Fire  Ins.  Co.,  46  K  Y.,  1.) 

Under  the  evidence  which  was  given  in  the  course  of  the 
trial  showing  the  agency  of  Perry  and  Scott,  they  were  the 
defendant's  general  agents,  for  they  .appear  to  have  been 
authorized  to  transact  all  its  business  in  Elmira.  (Lightbody 
v.  North  Am.  Ins.  Co.,  23  "Wend.,  18 ;  Carroll  v.  Charter 
Oak  Ins.  Co.,  40  Barb.,  292 ;  Post  v.  JStna  Ins.  Co.,  43  Barb., 
351.) 

And  being  general  agents,  they  had,  under  the  established 
law  of  the  State,  authority  to  waive  the  requirement  con- 
tained in  the  policy,  that  other  insurances  should  be  indorsed 
upon  it  in  order  to  sustain  its  validity  as  an  insurance  upon  the 
property  of  the  assured.  (Frost  v.  Saratoga  Mutual  Ins.  Co., 
5  Denio,  154;  Ames  v.  N.  Y.  Union  Ins.  Co.,  14  Y.  Y.,  253 ; 
SiddU  v.  Market  Fire  Ins.  Co.,  29  N.  Y.,  184 ;  JBoehen  v. 
Williamsburgh  Ins.  Co.,  35  N.  Y.,  131 ;  Carroll  v.  Charter 
Oak  Ins.  Co. ;  Post  v.  ^Etna  Ins.  Co.,  supra.} 

The  evidence  given  by  Strauss  and  the  plaintiff,  as  wit- 
nesses, if  it  was  entitled  to  credence,  showed  sufficient  to  con- 
stitute such  a  waiver.  And  for  that  reason,  notwithstanding 
their  contradiction  by  the  witness  Scott,  the  court  could  nei- 
ther nonsuit  the  plaintiff  nor  direct  a  verdict  in  favor  of  the 
defendant.  Their  evidence  showed  an  examination  and 
inspection  of  all  the  policies  by  Scott,  one  of  the  agents,  under 
circumstances  requiring  him  to  determine  whether  they  were 
valid  or  not.  And  he  pronounced  them  to  be  valid,  includ- 
ing the  one  issued  by  the  defendants,  which  could  not  have 
been  the  case  unless  he  designed  to  waive,  on  behalf  of  the 
defendant,  the  requirement  that  the  other  insurances  should 
have  been  indorsed  upon  it.  If  the  jury  believed  these  two 
witnesses,  as  by  their  verdict  they  appear  to  have  done,  then 
the  defendant  did  through  its  agent  have  notice  of  the  other 


1872.]  OF  THE  STATE  OF  NEW  YORK.  417 

Pechner  v.  The  Phoenix  Insurance  Co. 

insurances  which  Strauss  &  Co.  procured  upon  the  property, 
and  beyond  that  effectually  waived  the  condition  which  made 
the  validity  of  the  policy  dependent  upon  the  written  consent 
of  the  defendant  to  such  other  insurances. 

But  even  if  there  was  no  express  waiver,  but  a  mere  notice 
of  those  insurances,  the  objection  to  the  omission  to  indorse 
them  was  substantially  waived  on  three  distinct  occasions. 
First,  by  the  consent  to  the  assignment  of  the  policy  in  suit 
from  Strauss  to  the  plaintiff,  then  by  the  renewal  of  the  policy 
to  the  plaintiff  on  the  "thirty-first  of  March,  1866,  and  again 
by  the  consent  given  the  plaintiff  to  the  removal  of  his  stock 
from  one  store  to  the  other,  in  the  following  month  of  April. 
If  the  agent  at  these  several  times  knew  of  the  other  insur- 
ances which  had  been  issued  to  Strauss  &  Co.,  those  acts  of 
themselves  were  sufficient  to  waive  the  want  of  the  indorse- 
ment. (Carroll  v.  Charter  Oak  Ins.  Co.,  40  Barb.,  292; 
Sherman  v.  Niagara  Fire  Ins.  Co.,  46  N.  T.,  526.) 

Assuming,  as  may  properly  be  done,  from  the  verdict  ren- 
dered by  the  jury,  that  the  agent  had  notice  of  the  existence 
of  the  other  policies  and  waived  the  objection  to  the  omission 
to  have  them  indorsed  upon  the  policy  in  suit,  then  the  fact 
that  new  policies  were  taken  out  in  lieu  of  the  others,  at  the 
time  when  they  expired,  will  not  prevent  a  recovery  by  the 
plaintiff,  even  though  the  new  policies  were  not  brought  to 
the  notice  of  the  defendant  or  its  agent.  For  by  the  previous 
waiver,  the  defendant  surrendered  its  right  to  object  to  the 
maintenance  of  that  amount  of  other  insurance  upon  the  same 
property.  As  to  that  extent  of  other  insurance,  the  defend- 
ant by  its  waiver  had  indicated  its  approval,  and  the  plaintiff 
was  at  liberty  to  continue  it  in  the  companies  issuing  the  poli- 
cies to  Strauss  &  Co.,  or  in  any  other  companies  that  might 
enjoy  his  confidence.  It  was  in  substance  and  effect  a  con- 
sent that  other  insurance  might  be  held  upon  the  property  to 
the  amount  mentioned  in  the  other  policies  issued  to  Strauss  & 
Co.  without  the  procurement  of  their  indorsement.  That  was 
the  fair  and  reasonable  import  of  the  act,  and  it  was  probably 
so  understood  by  the  plaintiff  when  he  received  the  new  poll- 

LAXSING — VOL.  VI.         53 


418  CASES  IN  THE  SUPREME  COURT          [June, 

Pechner  v.  The  Phoenix  Insurance  Co. 

cies  in  the  other  companies.  By  these  policies  no  change 
was  made  in  the  aggregate  amount  of  the  insurance  upon  the 
property,  and  the  defendant  had  no  interest  which  could  be 
prejudiced  by  the  want,  or  promoted  by  the  fact,  of  notice  that 
they  had  been  taken.  {Benjamin  v.  Saratoga  Mutual  Ins.  Co., 
1-7  N.  Y.,  415.)  In  Brown  v.  Cattaraugus  County  Mutual 
Ins.  Co.  (18  N".  Y.,  385),  the  policy  contained  a  clause  render- 
ing it  void  if  the  insured  had  any  other  insurance  against  loss 
by  fire  on  the  property,  not  notified  to  the  defendant,  and  fur- 
ther declaring  that  if  he  should  make  any  such  insurance  and 
should  not,  with  all  reasonable  diligence,  give  notice  to  the 
secretary  and  have  it  indorsed,  the  policy  should  cease.  It 
appeared  in  the  case  that  the  plaintiff  obtained  another  insur- 
ance from  the  Ontario  and  Livingston  Mutual,  on  the  9th  of 
July,  1855.  But  the  plaintiff  proved  that  this  was  in  renewal 
of  a  previous  insurance  which  expired  June  20,  1855.  And 
the  court  held  that  this  insurance  was  not  within  the  terms 
or  spirit  of  the  provision  requiring  notice  of  other  insurance 
afterwards  procured. 

This  authority  must  be  conclusive  upon  this  point ;  for  it 
can  make  no  substantial  difference  in  the  case,  whether  the 
subsequent  policies  for  the  amount  previously  insured  are 
issued  by  the  same  or  by  other  insurance  companies.  They 
are  no  more  other  insurances  in  the  one  case  than  they  are 
in  the  other.  In  the  authority  referred  to,  that  was  greater 
reason  than  any  which  can  be  found  in  the  present  case  for 
holding  the  new  policy  to  be  another  insurance,  for  it  was 
not  issued  until  nineteen  days  after  the  first  had  ceased  to 
exist. 

In  view  of  this  conclusion,  it  can  hardly  be  important  to 
inquire  whether  the  court  was  right  in  the  last  direction  given 
to  the  jury.  But  if  it  should  be  deemed  to  be  so,  no  doubt 
can  be  entertained  as  to  the  propriety  of  that  direction. 
Immediately  preceding  it,  the  court  had  been  calling  the 
attention  of  the  jury  to  the  three  new  policies  which  had 
been  procured  by  the  plaintiff  and  the  effect  of  what  was  sup- 
posed to  have  been  the  interview  in  the  summer  concerning 


1872.]  OF  THE  STATE  OF  NEW  YORK.  419 

Pechner  «  The  Phoenix  Insurance  Co. 

them  between  him  and  the  agent,  Scott.  And  as  to  those 
policies,  the  judge  observed :  "  If  Scott  saw  the  policies  and 
knew  the  meaning  of  them,  and  said  it  was  all  right,  the 
plaintiff  can  recover."  As  an  abstract  legal  proposition,  no 
fault  can  be  found  with  this  direction,  for  by  the  term  "it," 
reference  appears  to  have  been  made  to  the  policy  in  suit. 
That  clearly  seems  to  have  been  the  case,  from  what  had  been 
observed  just  before  this  statement  was  made.  If  he  did  see 
the  policies,  and  then  knowing  the  others  were  not  indorsed 
upon  the  one  in  suit,  pronounced  that  all  right  notwithstand- 
ing the  omission,  it  exhibited  a  clear  purpose  to  waive  the 
condition.  Because,  without  such  a  design,  he  could  not  pro- 
perly or  truthfully  have  declared  the  policy  in  suit  to  be  all 
right.  And  that  would  ordinarily  be  understood  as  the  effect 
of  the  words  made  use  of  by  the  agent 

Whether  the  evidence  given  relative  to  that  circumstance 
was  sufficient  to  justify  the  submission  of  that  inquiry  to  the 
jury,  was  a  question  not  made  upon  the  trial.  And  for  that 
reason,  it  need  not  be,  and  indeed  cannot  be,  considered  upon 
the  present  disposition  of  the  case.  No  exception  was  taken 
presenting  that  precise  point. 

The  exception  taken  to  the  question  whether  Scott  knew 
that  the  witness  had  other  insurance  with  Ayers,  the  agent 
of  the  other  companies,  cannot  be  sustained,  even  though  the 
question  should  be  deemed  to  be  improper  in  point  of  form. 
For  it  was  important,  as  a  fact,  to  prove  that  Scott  did  have 
that  knowledge.  But  no  suggestion  was  made  showing  that 
the  question  put  to  the  witness  was  objected  to  as  being  for- 
mally improper.  If  that  had  been  done,  the  inquiry  could  at 
once  have  been  so  modified  as  to  have  deprived  it  of  all  objec- 
tionable features.  As  the  objection  was  made,  even  if  the 
question  was  in  form  improper,  it  was  too  general  to  be 
allowed  to  prevail  at  this  time.  (Fountain  v.  Pettee,  38  N. 
Y.,  184.) 

The  exceptions  taken  to  the  evidence  offered,  to  prove  the 
waiver  of  the  condition  requiring  other  insurance  beyond  the 
two  thousand  dollars  mentioned  in  the  body  of  the  policy  to 


420  CASES  IN  THE  SUPREME  COURT         [June 

Rogers  v.  Wheeler. 

be  indorsed  upon  it,  have  already  been  disposed  of,  in  sub- 
stance, by  the  consideration  of  that  evidence  as  being  properly 
before  the  court  and  jury.  This  evidence  did  not  contradict 
the  contract  made  between  the  parties,  but  merely  tended  to 
show  the  performance,  or  observance,  of  the  condition  by  the 
assured  to  have  been  dispensed  with  after  the  policy  was 
issued  and  delivered.  Its  object  was  to  prove  a  subsequent 
modification  of  some  of  the  terms  of  the  contract,  which  can 
always  be  done,  even  by  oral  evidence  and  without  a  new  con- 
sideration. (Blanchard  v.  Weeks,  38  N.  Y.,  225.) 

~No  reason  exists  for  interfering  with  the  result  in  this  case, 
and  the  defendant's  motion  for  a  new  trial  should  be  denied, 
and  judgment  ordered  for  the  plaintiff  on  the  verdict. 

New  trial  denied. 


JAMES  ROGERS  AND  JOHN  ROGERS,  Respondents,  v.  WILLIAM 
'  262  A.  WHEELER  et  al.,  Appellants. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  JUNE,  1872.) 

The  defendants  were  common  carriers,  and  also  had,  at  one  terminus 
of  their  route,  an  elevator  through  which  they  received  merchandise  for 
transportation,  and  which  they  also  used  as  a  warehouse  for  storage; 
having  received  at  the  elevator  from  a  connecting  carrier  the  plaintiffs' 
grain,  consigned  to  a  point  beyond  the  other  terminus  of  their  line,  with- 
out directions  or  agreement  for  its  storage, — Held,  that  they  were  liable 
to  the  plaintiffs  as  common  carriers  and  not  as  warehousemen. 

A.  practice  of  plaintiffs  to  bag  grain,  shipped  to  them  over  defendants'  line, 
at  the  elevator  as  a  matter  of  convenience,  not  founded  on  any  under- 
standing or  agreement  between  plaintiffs  and  defendants,  held  not  to  affect 
the  defendants'  liability  as  common  carriers. 

Letters  of  the  plaintiffs  sent  to  the  defendants  in  regard  to  a  former  ship- 
ment of  grain,  directing  the  forwarding  of  part  of  such  shipment,  and 
containing  no  directions  as  to  the  residue,  construed,  and  held  not  to 
show  an  understanding  that  the  grain  in  question  should  be  held  in  store 
for  orders. 

Nor  does  the  evidence  of  an  agent  of  the  defendants,  that  the  defendants' 
grain  was  stored  until  ordered  forward,  and  that  in  storing  it  he  acted  as 
agent  for  plaintiffs,  the  only  authority  for  so  acting  being  derived  from 


1872.]  OF  THE  STATE  OF  NEW  YORK.  421 

Rogers  v.  Wheeler. 

the  bills  of  lading,  by  which  the  grain  was  consigned  to  the  plaintiffs  at 
its  destination  under  the  care  of  such  agent  at  the  elevator. 

Where  the  only  tendency  of  certain  incompetent  testimony  was  to  estab- 
lish a  fact  which  the  referee  expressly  negatived  by  his  findings  of  fact, 
Held,  that  there  was  no  error  for  which  the  decision  could  be  disturbed. 

The  consignment  to  care  of  "  A  B,  agent,"  it  appearing  that  he  was  agent 
only  for  the  defendants,  and  solely  in  their  employ,  was  a  consignment 
in  effect  to  the  defendants.  And  that  the  defendants  had  previously 
received  and  carried  the  plaintiffs'  goods  similarly  consigned  is  evidence 
of  an  understanding  by  defendants  that  it  was  to  their  agent  for  their 
benefit. 

APPEAL  from  judgment  recovered  on  referee's  report. 

Edward  C.  James,  for  the  appellants. 

Matthew  Hale,  for  the  respondents. 

Present — POTTER,  P.  J. ;  PAEKEB  and  DANIELS,  JJ. 

DANIELS,  J.  This  action  was  brought  to  recover  the  value 
of  a  quantity  of  grain  destroyed  by  fire  while  it  was  in  an 
elevator,  situated  at  Ogdensburgh.  The  defendants,  at  that 
time  and  previous  thereto,  had  the  possession  and  use  of  the 
elevator,  together  with  the  railroad  of  the  Northern  Railroad 
Company,  as  trustees  for  the  second  mortgage  bondholders 
of  the  Northern  Railroad  Company.  Before  and  at  the  time 
of  the  fire  this  elevator  was  used  and  employed  by  the  defend- 
ants for  the  purpose  of  elevating  grain  into  it,  storing  it  there 
for  the  owners,  and  also  for  the  defendants  themselves,  where 
it  was  received,  there  to  be  transported  by  them  over  the 
Northern  railroad.  In  their  capacity  of  trustees,  they  carried 
on  the  business  of  warehousemen  at  the  elevator,  and  also  that 
of  common  carriers  over  the  railroad  they  had  in  their  pos- 
session. The  grain  received  from  the  lake  for  transportation 
over  the  road  by  the  defendants  as  common  carriers  was  so 
received  at  the  elevator,  and  afterward  delivered  from  there 
on  the  cars  used  by  the  defendants  in  operating  and  carrying 
on  the  business  of  the  railroad.  This  road  extended  from 
Ogdensburgh  to  Rouse's  Point;  and  it  was  used  by  the 
defendants  between  those  places  in  the  carriage  and  trans- 


422  CASES  IN  THE  SUPREME  COURT         [June, 

Rogers  v.  Wheeler. 

portation  of  passengers  and  property  for  hire  as  common  car- 
riers. 

After  the  grain  in  question  was  received  into  the  elevator 
it  was  destroyed  by  an  accidental  fire,  which  did  not  appear 
to  have  been  caused  by  any  fault  or  negligence  of  the  defend- 
ants, and  which  consumed  the  elevator  and  its  contents.  The 
grain  belonging  to  the  plaintiffs,  which  was  so  destroyed,  was 
in  part  received  into  the  elevator  on  the  seventh  day  of  July, 
1864,  and  in  part  on  the  twenty -seventh  day  of  the  same 
month  ;  and  the  fire  destroying  it  occurred  on  the  next  day. 
This  grain  was  shipped  partly  from  Chicago,  and  the  residue 
from  Milwaukie,  by  propeller,  in  the  Northern  Transporta- 
tion Company,  to  be  carried  from  those  points  by  that  line 
to  Ogdensburgh.  By  the  terms  of  the  bills  of  lading,  made 
iTSe  of  in  the  shipment  of  the  grain,  that  company  was 
exonerated  from  liability  arising  out  of  loss  of  the  grain  by 
fire.  But  these  bills  of  lading  governed  the  transit  of  the 
property  only  between  the  points  of  shipment  and  the  termi- 
nation of  the  route  by  water.  They  declared  and  defined 
the  obligations  of  the  Northern  Transportation  Company 
from  the  time  the  property  was  received  by  it  until  it  was 
properly  delivered  at  Ogdensburgh,  and  no  longer.  (Lamb 
v.  (Jamden  and  Amloy  R.  R.  Co.,  46  N.  Y.,  271.)  After 
that  the  obligations  of  the  carrier  were  left  to  be  inferred 
from  the  circumstances  indicating  the  course  and  ultimate  des- 
tination of  the  property.  The  case  is  not,  therefore,  within 
the  principle  held  and  applied  in  Maghee  v.  Camden  and 
Amboy  R.  R.  Co.  (45  N.  Y.,  514),  where  the  contract  made 
by  the  carrier  receiving  the  property  extended  over  the  por- 
tion of  the  route  of  transit  upon  which  it  was  accidentally 
destroyed. 

Upon  the  trial  of  this  cause  it  appeared  that  the  property 
in  controrersy  was  designed  by  the  plaintiffs  to  be  carried 
and  transported  from  the  points  of  its  receipt  to  Ansable 
Forks,  where  they  were  engaged  in  carrying  on  business.  Its 
route  from  Ogdensburgh  was  by  the  Northern  railroad  to 
Rouse's  Point ;  from  thence  by  boats  to  Port  Kent,  upon 


1872.]  OF  THE  STATE  OF  NEW  YORK.  433 

Rogers  v.  "Wheeler. 

Lake  Champlain ;  and  thence  by  teamsters  to  the  plaintiffs' 
place  of  business.  The  defendants'  obligations  concerning 
the  property  commenced  upon  its  receipt  at  the  elevator,  and 
terminated  with  its  delivery  at  Rouse's  Point.  The  agents 
of  the  Northern  Transportation  Company,  at  Chicago  and 
Milwaukie,  had  authority  to  contract  at  the  usual  rates  for 
the  transportation  of  property  carried  by  that  company  over 
the  defendants'  road  ;  but,  as  has  been  already  observed,  they 
made  no  such  contract  concerning  that  which  is  now  the  sub- 
ject of  controversy.  The  contract  made  by  those  agents  on 
behalf  of  that  company,  by  means  of  the  bills  of  lading  given 
in  evidence,  extended  no  farther  than  Ogdensburgh.  There, 
according  to  these  bills  of  lading,  the  grain  was  consigned  to 
D.  C.  Brown,  agent,  and  directed  to  the  plaintiffs,  at  Ausable 
Forks.  The  precise  terms  made  use  of  upon  that  subject  in 
the  margin  of  the  bills,  and  after  binding  the  Northern 
Transportation  Company  to  carry  it  to  Ogdensburgh,  was  as 
follows :  "  I.  and  I.  Rogers,  Ausable  Forks,  N.  Y.  Care  D. 
C.  Brown,  agent,  Ogdensburgh,  N.  Y."  And  it  is  from  that, 
in  view  of  the  evidence  given  concerning  the  agency  of  D. 
C.  Brown,  the  receipt  of  the  property  by  the  elevator,  with 
notice  of  its  destination  to  the  person  in  charge  of  it,  and  the 
actual  destination  of  the  property,  that  the  defendants'  obli- 
gation concerning  it  is  to  be  inferred.  For  the  evidence, 
given  by  one  of  the  plaintiffs  as  a  witness  upon  the  trial, 
showing  that  they  always  bagged  their  grain  at  Rouse's  Point, 
and  preferred  to  do  so,  did  not  restrict  the  defendants  to  its 
carriage  in  such  quantities  as  would  allow  that  to  be  done ; 
for  no  orders  were  ever  given  by  the  plaintiffs  to  that  effect. 
Even  the  practice  itself  was  qualified  by  the  circumstance 
that  it  was  only  bagged  when  it  did  not  arrive  too  fast  to 
permit  that  to  be  done,  and  could  be  received  in  that  way 
fast  enough  to  suit  the  management  of  the  railroad.  This 
was  simply  a  convenience  to  the  plaintiffs,  imposing  no  obli- 
gation upon  the  defendants  to  so  keep  and  forward  the  grain 
as  to  secure  its  enjoyment  by  the  owners  of  the  property. 
No  contract  or  understanding  can  properly  be  inferred  from 


424  CASES  IN  THE  SUPREME  COURT         [June, 


Rogers  v.  Wheeler. 


this  circumstance  that  the  defendants  should  store  the  grain 
in  the  elevator,  either  in  whole  or  in  part,  for  such  a  period 
of  time,  and  send  it  over  their  road  in  such  quantities  merely 
as  would  secure  or  promote  the  enjoyment  of  that  privilege 
'or  practice  by  the  plaintiffs.  Neither  the  agents  of  the 
defendants  nor  any  other  person  gave  any  evidence  tending 
to  show  that  the  plaintiffs  had  indicated  any  desire  to  have 
their  grain  forwarded  in  that  manner ;  and  no  contract  to  do 
so  can  be  implied  from  the  isolated  circumstance  mentioned 
by  this  plaintiff  in  his  testimony.  More  particularly  must 
that  be  the  case  in  view  of  the  evidence  given  by  the  agent, 
D.  C.  Brown,  who  swore  that  he  never  had  any  directions  at 
all  from  the  plaintiffs  in  regard  to  the  grain ;  but  merely 
knew  of  their  manner  of  receiving  it  at  Rouse's  Point,  which 
was  to  put  men  in  the  cars  to  bag  it ;  that  he  had  no  agree- 
ment with  them  for  its  storage ;  that  no  charges  were  made 
for  its  storage  ;  and  he  ordered  it  to  be  sent  forward  as  fast 
as  suitable  cars  could  be  had,  which  was  not,  on  an  average, 
faster  than  one  car  load  per  day.  From  his  evidence  it  is  to 
be  inferred  that  it  was  delayed  at  the  elevator  for  want  of 
cars ;  and  not  because  it  was  designed  to  forward  it  only  so 
fast  as  it  could  be  conveniently  bagged  by  the  plaintiffs  upon 
its  arrival  at  Rouse's  Point.  The  witness  testified  further, 
that  he  never  had  any  interview  with  the  plaintiffs  prior  to 
the  fire ;  and,  consequently,  he  could  have  had  no  express 
verbal  directions  concerning  the  manner  in'  which  the  grain 
was  to  be  carried  and  delivered  by  the  defendants ;  and  no 
other  direction  whatever  was  pretended,  except  so  far  as  the 
letters  produced  contained  instructions  upon  that  subject. 
Two  of  these  letters  were  proved  in  the  case,  which  were  writ- 
ten before  the  fire  ;  one  to  Brown,  requesting  that  he  would 
send  forward  two  car  loads  of  wheat  as  soon  as  it  arrived ; 
and  the  other  to  Parker,  saying,  "  if  it  has  not  come  forward, 
will  you  send  two  or  three  cars  at  once  ? "  These  letters 
related  to  a  previous  cargo  of  2,500  bushels  shipped,  carried 
to  Ogdensburgh,  and  received  at  the  same  elevator  there,  in 
the  same  manner  as  the  wheat  in  controversy ;  and  they  were 


1872.]  OF  THE  STATE  OF  NEW  YORK.  425 

Rogers  v.  Wheeler. 

introduced  as  indicating  an  understanding  that  the  grain  was 
to  be  retained  in  store  at  the  elevator  until  ordered  forward 
by  the  plaintiffs.  But  they  countenance  no  such  conclusion. 
The  first  one  urged  Brown  to  send  forward  two  car  loads  as 
soon  as  it  arrived,  giving  no  directions  whatsoever  as  to  the 
remainder  of  the  cargo ;  but  adding,  "  we  are  in  great  want 
of  it ;"  "  send  it  to  Rouse's  Point."  By  this  term  "  it,"  they 
evidently  meant  to  refer  to  the  entire  cargo  of  2,500  bushels, 
previously  mentioned  in  the  letter.  And  it  was  fairly  to  be 
so  understood.  As  so  construed,  it  informed  the  agent, 
Brown,  that  the  plaintiffs  were  in  great  want  of  the  entire 
cargo ;  and  desired  at  least  two  car  loads  as  soon  as  it  arrived. 
This  conferred  no  authority  to  retain  any  portion  of  it ;  but 
simply  urged  the  transportation  of  a  part  at  once.  And  it 
was  probably  written  in  this  manner  by  reason  of  the  fact 
mentioned  by  the  plaintiff,  who  was  called  upon  the  stand  as 
a  witness  by  the  defendants,  that  the  plaintiffs  understood 
that  there  was  a  deficiency  of  cars  to  do  the  defendants'  busi- 
ness ;  and  that  it  had  been  so  for  several  years  prior  to  the 
fire.  The  other  letter,  written  five  days  afterward  to  Parker, 
relating  to  the  same  cargo,  certainly  affords  no  ground  for 
supposing  the  existence  of  an  understanding  to  detain  the 
grain  until  the  plaintiffs  ordered  it  forward ;  for  it  implied 
an  obligation  to  send  it  forward  without  specific  directions. 
By  the  terms  of  that  letter  the  defendants  were  requested 
(being  written  to  Parker),  if  it  was  a  request  to  them  at  all, 
to  send  the  two  or  three  car  loads  at  once,  if  the  cargo  itself 
had  not  then  gone  forward ;  and  as  no  particular  directions 
were  given  to  send  the  entire  cargo  by  the  previous  letter, 
and  no  express  agreement  existed  upon  the  subject,  according 
to  the  testimony  of  Brown,  and  the  plaintiff,  sworn  as  a 
witness,  the  obligation,  under  which  the  second  letter  implied 
that  the  cargo  might  possibly  have  been  sent  on,  was  exclu- 
sively and  necessarily  one  arising  out  of  the  manner  in  which 
the  defendants  received  the  grain.  No  authority  was  any- 
where given  to  store  the  grain  in  the  elevator  or  elsewhere 
by  these  letters,  or  by  any  directions  given  concerning  it  by 
-LANSING — VOL.  VI.  54 


426  CASES  IN  THE  SUPREME  COURT          [June, 

Rogers  v.  Wheeler. 

the  plaintiffs.  And  no  agreement  was  ever  made  between 
the  parties  on  that  subject. 

It  is  true  that  Brown  swore  that  the  grain  was  elevated 
and  stored  until  ordered  forward ;  and  that  he  was  the  plain- 
tiffs' agent  in  elevating,  storing  and  forwarding  it.  But  this 
statement  was  entitled  to  no  force  as  evidence  in  this  case ; 
for  he  afterward  stated  that  he  inferred  that  to  be  the  case 
only  from  the  bills  of  lading  under  which  the  grain  was 
received;  and  they  contained  nothing  whatever  which  war- 
ranted any  such  conclusion.  This  witness  testified  that  he 
was  never  employed  by  the  plaintiffs  to  act  as  their  agent, 
except  as  the  bills  of  lading  employed  him  ;  and  they  created 
no  such  employment,  for  they  contained  no  reference  to  him 
beyond  that  of  consigning  the  grain  to  his  care. 

He  was  the  assistant  superintendent  of  the  railroad  main- 
tained and  operated  by  the  defendants ;  and  as  he  never  was 
employed  as  an  agent  by  the  plaintiffs,  or  for  them  by  any 
one  acting  under  authority  from  them,  and  was  not  shown  to 
sustain  any  other  relation  than  that  of  assistant  superintend- 
ent, either  to  the  defendants,  their  railroad,  or  their  business, 
or  the  grain  in  question,  the  conclusion  follows  that  the  con- 
signment of  it  must  have  been  made  to  him  in  that  and  in 
no  other  capacity.  And  as  neither  he  nor  the  defendants 
had  any  authority  to  store  the  grain  in  the  elevator  from  the 
plaintiffs,  the  question  is  presented  whether  the  defendants 
received  it  solely  in  their  character  as  common  carriers,  and 
are,  as  such,  liable  for  its  loss.  Whether  they  did  or  not  must  be 
inferred  from  the  circumstances  under  which  it  was  received. 
For  although  certain  instruments,  sent  by  the  agent  of  the 
Northern  Transportation  Company  to  the  plaintiffs,  indicating 
that  the  defendants  expressly  undertook  to  carry  the  grain 
forward,  were  received  in  evidence,  upon  the  trial  they 
proved  no  such  agreement  on  the  part  of  the  defendants. 
The  only  evidence  given  attempting  to  connect  the  defend- 
ants with  these  instruments  was  the  statement  of  the  agent 
who  issued  them,  that  he  had  no  doubt  but  that  the  defend- 
ants' agents  had  seen  printed  blanks,  such  as  those  sent  were, 


1872.]          OF   THE  STATE  OF  NEW  YORK.  427 

Rogers  t>.  Wheeler. 

in  the  office  of  the  witness  before  they  were  filled  out.  This 
evidence  was  given,  and  the  instruments  referred  to  were 
read  upon  the  trial,  under  the  objection  made  by  the  defend- 
ants to  the  impropriety  and  incompetency  of  both.  There 
can  be  no  doubt  but  that  the  referee  decided  erroneously  in 
both  respects.  For  this  was  not  a  matter  that  could  be 
proved  by  the  opinion  of  a  witness ;  and  if  it  had  been  it  did 
not  prove  enough  to  subject  the  defendants  to  anything 
stated  in  the  instruments  read.  If  the  judgment,  or  any  of 
the  referee's  conclusions  against  the  defendants,  were  based 
upon  the  evidence  so  erroneously  received,  it  would  necessa- 
rily follow  that  a  new  trial  should  be  ordered  on  this  account. 
But  that  is  not  the  case.  For,  so  far  as  this  evidence  tended 
to  prove  anything,  it  was  an  express  agreement  for  the  car- 
riage and  transportation  of  the  grain,  while  the  referee,  in 
his  twenty-first  finding,  has  found  as  a  fact  that  the  defend- 
ants made  no  express  contract  with  the  plaintiffs  to  carry  the 
grain.  And  as  long  as  that  was  his  conclusion  it  is  clear  that 
this  improper  evidence  could  do  the  defendants  no  harm, 
although  he  found  from  it  that  the  defendants  knew  of  the 
existence  of  those  blanks.  For  that  finding,  erroneous  as  it 
no  doubt  is,  since  it  was  only  supported  by  improper  evi- 
dence, in  no  way  contributed  to  the  conclusion  finally  reached. 
That  was  made  to  depend  upon  the  circumstances  which 
were  legally  and  fully  proved  by  the  evidence  in  the  case ; 
and  if  they  necessarily  lead  to  that  result,  no  injury  was  sus- 
tained by  the  evidence  improperly  received. 

By  the  uncontroverted  facts  proved  upon  the  trial  it  was 
shown  that  all  grain  consigned  to  Ogdensburgh,  going  over 
the  railroad,  necessarily  went  through  this  elevator;  and  as 
Brown,  by  the  evidence  in  the  case,  was  shown  to  sustain 
the  relation  of  agent  only  to  the  defendants,  in  whose  sole 
employment  he  appears  to  have  been,  the  consignment  of  the 
grain  to  him  as  agent  was  a  consignment,  in  effect,  to  the 
defendants.  That  it  was  so  understood  on  the  plaintiffs'  part 
was  clearly  made  to  appear  ;  and  that  the  defendants  received 
it  in  the  same  way,  and  with  the  same  understanding,  is  as 


428  CASES  IN  THE  SUPREME  COURT         [June, 

Rogers  v.  Wheeler. 

little  open  to  donbt.  For  it  was  received  as  other  grain,  in 
the  same  way  consigned,  before  it  had  been  received  at  the 
defendants'  elevator  by  the  person  in  charge  of  that  establish- 
ment, who  issued  receipts  for  part  of  it  in  the  course  of  his 
employment.  And  all  of  the  first  cargo,  and  part  of  the 
second,  was  carried  over  the  road  and  delivered  before  the 
fire  occurred  which  consumed  the  residue.  This  was  suffi- 
cient to  show  that  the  defendants  understood  that  the  con- 
signment of  this  grain  to  Brown  as  agent  was  a  consignment 
of  it  to  them.  They  had  done  business  for  the  plaintiffs  in 
the  same  way  before.  The  agent  of  the  Northern  Transporta- 
tion Company  testified  that  after  removing  the  rolling  freight 
from  the  boat,  she  was  sent  to  the  elevator  to  discharge  her 
grain ;  that  then,  or  before,  an  abstract  was  made  of  her 
manifest,  and  a  copy  of  what  freight  was  to  go  east ;  and  a 
copy  of  that  was  delivered  to  the  railroad  agent.  That,  he 
said,  was  done  in  this  instance.  He  added  further :  "  I  sent 
a  memorandum  of  amount  of  grain  to  Bosworth,  the  railroad 
man  at  the  elevator,  with  consignee's  names."  From  that, 
the  receipts  given  for  a  portion  of  the  grain,  the  consignment 
made  of  it  by  the  bills  of  lading,  the  receipt  of  it  by  the 
defendants,  and  the  business  in  which  they  were  engaged,  the 
referee  found  that  the  defendants  received  the  grain  in  their 
capacity  of  carriers,  and  not  in  that  of  warehousemen ;  and, 
as  there  was  no  agreement  or  understanding  existing  for  the 
storage  of  the  grain  in  the  elevator,  it  follows,  from  the  cir- 
cumstances proved,  that  his  conclusion  in  this  respect  was 
fully  warranted  by  the  evidence  in  the  case.  The  delivery 
to,  and  the  receipt  by,  the  elevator  was  a  mere  accessory  to 
the  obligation  to  carry,  which  was  clearly  to  be  implied  from 
the  circumstances  proven.  It  was  the  only  mode  in  which 
the  defendants  received  that  description  of  property  for  the 
purpose  of  carrying  it ;  and  as  this  was  ultimately  consigned 
over  and  beyond  the  terminus  of  the  defendants'  road,  and 
was  received  subject  to  that  direction  accompanying  the  pro- 
perty, while  it  remained  in  their  hands  they  held  it  as  com- 
mon carriers,  responsible  for  the  consequences  resulting  to  it 


1872.]  OF  THE  STATE  OF  NEW  YORK.  429 

Rogers  v.  Wheeler. 

from  an  accidental  tire.  This  liability  is  so  fully  sustained 
by  the  authorities  that  nothing  beyond  a  simple  reference  to 
them  can  be  required  to  maintain  the  conclusion  mentioned. 
(Blossom  v.  Griffith,  3  Kernan,  569 ;  Miller  v.  Steam  Navi- 
gation Co.,  10  N.  Y.,  431 ;  Ooold  v.  Chapin,  20  id.,  259 ; 
Ladue  v.  Griffith,  25  id.,  364 ;  Fenner  v.  Buffalo  and  State 
Line  R.  R.  Co.,  44  id.,  505 ;  Wiibeck  v.  Holland,  45  id.,  13.) 
This  conclusion  does  not  conflict  with  that  which  was  declared 
in  Banou  v.  Eldridge  (100  Mass.,  455),  upon  another  claim, 
arising  out  of  the  destruction  of%  other  property  in  the  same 
elevator  at  the  time  of  the  fire.  For  that  property,  it  was 
held,  was  not  in  the  possession  of  the  defendants  as  carriers. 
What  the  evidence  was  which  was  given  upon  that  subject 
does  not  appear  in  the  report  of  the  case ;  and  for  that  reason 
it  cannot  be  deemed  an  authority  against  the  defendants' 
liability  on  the  present  demand. 

In  this  case  it  is  to  be  inferred,  from  the  manner  in  which 
the  defendants  received  the  property,  with  knowledge  of  its 
consignment  over  and  beyond  the  terminus  of  their  road, 
that  they  received  it  for  the  sole  purpose  of  being  carried 
and  not  stored  by  them ;  and,  consequently,  that  they  became 
liable  for  its  loss  by  the  fire  which  destroyed  it.  As  the  cir- 
cumstances proved  led  to  this  conclusion,  the  referee  properly 
refused  to  find  the  other  facts  claimed  to  have  been  sustained 
by  the  evidence.  They  were  inconsistent  with  the  established 
liability  of  the  defendants,  and,  for  that  reason,  not  only  not 
proved,  but  actually  negatived  by  the  result  maintained  in 
the  referee's  report. 

The  judgment  should  be  affirmed,  with  costs. 


430  CASES  IN  THE  SUPREME  COURT      [June, 

Dougan  v.  The  Champlain  Transportation  Co. 


SYLVIA  DOUGAN,   Administratrix,  &c.,  Respondent,  v.  THE 
CHAMPLAIN  TRANSPORTATION  COMPANY,  Appellant. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  JUNE,  1872.) 

The  State  courts  of  common  law  have  jurisdiction  in  causes  of  action 
arising  within  admiralty  jurisdiction,  where  a  remedy  exists  at  common 
law,  although  the  cause  of  action  is  not  recognized  by  the  common  law, 
but  is  given  entirely  by  the  State  statutes. 

So  held  in  view  of  the  acts  of  congress  of  1789  and  1845  (1  U.  S.  Stats,  at 
Large,  p.  76,  §  9 ;  5  id.  pp.  726,  727). 

Plaintiff's  intestate,  a  passenger  upon  defendant's  boat,  went  upon  the 
outer  lower  deck,  outside  the  weather  door,  upon  a  cold  night,  where  the 
water  thrown  upon  the  deck  by  the  wind  was  freezing,  and  his  hat  hav- 
ing blown  off,  in  an  effort  to  save  it  slipped  and  fell.  The  gangway  of 
the  boat  was  entirely  open  excepting  a  bar  at  the  top,  and  through  this 
he  slipped  overboard  and  was  drowned.  There  was  a  water  closet  on 
the  outer  part  of  the  lower  deck  designed  for  the  use  of  the  crew,  and  he 
had  remarked  that  he  was  going  out  there  to  use  this.  There  was  also 
another  water  closet  inside  the  weather  door  for  passengers'  use,  with  a 
sign  indicating  its  purpose,  but  it  did  not  appear  that  deceased  knew  of 
this,  and  there  was  no  prohibition  upon  the  use  of  the  outer  one  by  pas- 
sengers. The  boat  at  the  gangway  was  from  thirty  to  forty  feet  wide, 
sloping  slightly  from  the  center  to  the  bulwarks,  and  the  gangway  was 
from  eight  to  nine  feet  wide. 

Held,  that  the  omission  of  a  more  perfect  guard  at  the  gangway  was  not 
such  negligence  on  the  part  of  the  company  as  made  them  liable  for  the 
accident. 

Held,  also,  that  the  defendant's  negligence  under  the  circumstances  must  be 
held  to  have  contributed  to  the  accident. 

APPEAL  from  judgment  rendered  on  the  verdict  of  a  jury, 
and  from  order  denying  a  new  trial.  The  facts  are  stated  in 
the  opinion. 

M.  Hale,  for  the  respondent. 

frauds  A.  Smith  with  A.  C.  Hand,  for  the  appellant. 

Present — POTTER,  DANIELS  and  PARKER,  JJ. 

PARKER,  J.  This  action  was  brought  to  recover  damages 
sustained  by  the  widow  and  next  of  kin  of  John  Dougan, 


1872.]  OF  THE  STATE  OF  NEW  YORK.  431 

Dougan  v.  The  Champlain  Transportation  Co. 

deceased,  in  consequence  of  the  death  of  the  said  John  Dou- 
gan, caused,  as  alleged,  by  the  negligence  of  the  defendant. 
Dougan  was,  on  the  15th  day  of  November,  1869,  a  passen- 
ger on  the  steamboat  "  United  States,"  owned  and  run  by 
the  defendant  on  Lake  Champlain. 

He  took  the  boat  at  Port  Henry  for  Burlington,  Yt.,  pay- 
ing his  fare  to  that  place.  The  "  United  States  "  was  at  the 
time  of  the  accident,  and  had  been  for  several  years,  one  of  a 
line  of  passenger  boats  known  as  "  The  Champlain  Trans- 
portation Company's  Line,"  plying  between  Plattsburgh  and 
"Whitehall,  on  the  navigable  waters  of  Lake  Champlain, 
touching  at  intermediate  landings  in  the  States  of  New  York 
and  Vermont,  and  among  them  at  Port  Henry  and  Essex  in 
New  York,  and  at  Burlington  in  Vermont,  and  making  in 
all,  in  both  States,  eight  landings  between  Burlington  and 
Whitehall. 

She  is  constructed  with  an  open  weather  deck  forward, 
sloping  slightly  from  the  center  to  the  bulwarks,  and  from 
thirty  to  forty  feet  wide  from  gangway  to  gangway.  This 
deck  has  bulwarks  of  boards  or  plank  on  each  side  three  or 
four  feet  high  to  the  stern,  and  a  gangway  on  each  side  eight 
or  nine  feet  wide  through  which  passengers  and  freight  pass 
on  and  off,  and  which  are  closed  only  by  two  cross  bars  to 
each,  hinging  on  the  bulwarks  at  the  ends,  and  of  the  same 
height  as  the  bulwarks,  and  folding  together  upon  an  upright 
stanchion  on  center  piece  attached  firmly  to  the  deck. 

This  open  deck  is  used  by  the  crew  in  rough  weather  as  a 
runway  for  what  is  called  the  "  trim  box,"  which  is  filled 
with  chains  and  arranged  on  trucks,  so  that  it  may  be  rolled 
from  side  to  side  as  occasion  requires  in  order  to  keep  the 
boat  trim.  This  deck  is  also  used  for  horses  and  freight  of 
different  kinds,  but  has  no  seats  or  other  accommodations  for 
passengers,  although  passengers  are  not  forbidden  to  go  there, 
the  accommodations  for  passengers  being  in  the  recess  aft  the 
shaft,  and  in  the  saloon  upon  the  upper  deck. 

Just  back  of  the  forward  deck  are  "  weather  doors  "  on  each 
side,  which  are  kept  open  or  shut  according  to  the  weather, 


432  CASES  IN  THE  SUPREME  COURT          [June, 

Dougan  «.  The  Champlain  Transportation  Co. 

and  through  which  passengers  enter  the  inclosed  portion  of 
the  boat.  Inside  of  the  weather  doors,  on  the  left-hand  side 
of  the  boat,  is  a  water  closet  for  passengers,  having  a  sign  on 
the  door  indicating  its  purpose  ;  and  on  each  side  of  the  boat, 
outside  the  weather  doors,  opening  from  the  deck  above 
described,  is  another  water  closet,  which  has  no  sign  to  indi- 
cate it,  and  is  designed  for  the  use  of  the  crew. 

The  boat  was  duly  enrolled,  licensed  and  inspected,  and 
was  staunch  and  seaworthy.  After  the  boat  left  Essex,  on 
the  way  to  Burlington,  the  deceased,  who  had  been  standing 
inside  the  "  weather  doors,"  went  out  on  the  forward  deck, 
saying  he  must  go  to  the  water  closet.  As  he  went  through 
the  doors,  which  he  opened,  his  hat  blew  off:  he  sprang  for  it, 
slipped  upon  the  icy  deck,  fell  upon  his  back  and  slid  over- 
board, through  the  gangway,  under  the  cross  bars  and  was 
drowned.  The  time  of  day  was  between  dusk  and  dark  ;  the 
wind  was  blowing  to  such  a  degree  as  to  blow  the  water  upon 
the  deck,  where  it  froze,  making  the  deck  slippery. 

Evidence  was  given  on  both  sides  to  show  in  which  State, 
New  York  or  Vermont,  the  accident  occurred,  and  the  plain- 
tiff during  the  trial  was  suffered  to  amend  his  complaint,  and 
add  a  count  based  upon  the  Vermont  statute,  authorizing  a 
recovery  by  an  administrator  for  damages  on  account  of  his 
intestate's  death  caused  by  wrong  or  negligence,  to  all  of 
which  defendants  objected  and  duly  excepted. 

At  the  close  of  the  evidence,  the  defendant  moved  for  a 
nonsuit  on  the  ground  : 

1st.  That  this  court  has  no  jurisdiction  of  the  action, 
because  the  transaction  occurring  on  inter-State  navigable 
waters,  within  admiralty  jurisdiction,  the  jurisdiction  of  those 
courts  is  exclusive ;  and  because  the  accident  having  occurred 
out  of  the  State,  no  right  of  action  accrues  under  the  statute 
of  this  State. 

2d.  That  there  is  no  evidence  of  negligence  on  the  part  of 
the  defendant. 

3d.  That  the  proof  establishes  that  there  was  contributory- 
negligence  on  the  part  of  the  deceased. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  483 

Dougan  v.  The  Champlain  Transportation  Co. 

The  court  denied  the  motion  and  the  defendant  excepted. 
The  cause  was  submitted  to  the  jury  under  a  charge  to  which 
no  exception  was  taken. 

The  jury  found,  specially,  that  the  boat  was  in  the  waters 
of  the  State  of  New  York  when  Dougan  was  lost  overboard, 
and  rendered  a  verdict  in  favor  of  the  plaintiff  for  $3,000. 

A  motion  was  made  by  the  defendant  for  a  new  trial  upon 
the  minutes,  which  was  denied.  The  defendant  appeals  from 
the  judgment  entered  upon  the  verdict,  and  from  the  order 
denying  a  new  trial. 

In  regard  to  the  question  of  the  jurisdiction  of  this  court 
in  the  case,  I  think  the  decision  was  right  upon  both  branches 
of  that  question  ;  that  is,  that  it  is  not  a  case  within  the  exclu- 
sive jurisdiction  of  the  courts  of  admiralty,  nor  one  not  cog- 
nizable by  the  courts  of  this  State  by  reason  of  the  cause  of 
action  arising  out  of  the  State. 

As  to  the  latter  point,  the  verdict  of  the  jury,  that  the 
boat  was  in  the  waters  of  this  State  when  Dougan  was  lost 
overboard,  is  decisive. 

Upon  the  question  of  its  being  a  marine  tort,  therefore  a 
case  for  admiralty  jurisdiction  merely,  it  is  only  necessary  to 
examine  the  acts  of  congress  on  the  subject,  to  see  that  the 
case  is  within  the  concurrent  jurisdiction  of  the  common-law 
courts  as  well. 

By  the  ninth  section  of  the  "  Act  to  establish  the  judicial 
courts  of  the  United  States,"  approved  September  24th,  1789, 
it  is  provided  that  "  the  district  courts  shall  *  *  *  have 
exclusive  original  cognizance  of  all  civil-  causes  of  admiralty 
and  maritime  jurisdiction,  *  *  *  saving  to  suitors  in  all 
cases  the  right  of  common-law  remedy,  where  the  common 
law  is  competent  to  give  it." 

By  the  "  Act  extending  the  jurisdiction  of  the  district  courts 
to  certain  cases  upon  the  lakes  and  navigable  rivers  connect- 
ing the  sarrfe,"  approved  February  26,  1845,  there  is  the 
game  saving  to  suitors  of  "  the  right  of  a  concurrent  remedy 
at  the  common  law,  where  it  is  competent  to  give  it,  and  any 
concurrent  remedy  which  may  be  given  by  the  State  laws 

LANSING — VOL.  VI.         55 


434  CASES  IN  THE  SUPREME  COURT         [Jtine, 

Dougan  v.  The  Champlain  Transportation  Co. 

where  such  steamer  or  other  vessel  is  employed  in  such  busi- 
ness of  commerce  and  navigation." 

Granting  the  contract,  by  which  deceased  was  to  be  trans- 
ported from  Port  Henry  to  Burlington,  to  be  a  marine  con- 
tract, and  the  negligence  (if  any)  by  which  he  was  lost 
overboard  a  marine  tort,  cognizable  by  the  admiralty  courts, 
still,  although  the  cause  of  action  is  not  one  recognized  by 
the  common  law,  but  a  mere  statutory  one,  the  common  law 
furnishes  a  competent  remedy,  and  such  remedy,  within  the 
meaning  of  the  act,  is  pursued  in  this  action;  for,  I  take  it, 
"the  intent  of  the  act  is  to  save  the  remedy  or  right  of 
action  in  those  courts  which  proceed  according  to  the  com- 
mon law  as  distinguished  from  the  course  of  admiralty,"  as  is 
held  in  Chase,  Administrator,  v.  The  American  Steamboat 
Co. ;  MS.  opinion  of  POTTER,  J.,  in  the  Supreme  Court  of 
Rhode  Island.  Hence,  under  the  act  of  1789,  the  admiralty 
jurisdiction  in  this  case  is  not  exclusive  of  the  common-law 
courts  or  looking  particularly  at  the  statute  under  which  this 
action  was  brought  (Laws  of  1847,  chap.  450,  and  Laws  of 
1849,  chap.  256);  the  same  may  be  stated  in  the  language 
of  RAPALLO,  J.,  in  Brookman  v.  Ilamill  (48  N.  Y.  R.,  554, 
558,  559)  as  follows :  "  There  is  another  class  of  cases  in  which 
the  State  laws  are  operative,  but  for  a  different  reason,  viz. : 
Claims  against  vessels  navigating  the  lakes  and  rivers  con- 
necting therewith.  The  jurisdiction  of  the  States  over  these 
cases  is  protected  by  the  act  of  congress  of  February  26, 1845, 
which  expressly  secures  to  suitors  not  only  their  concurrent 
remedies  at  common  law,  but  also  any  concurrent  remedy 
which  may  be  given  them  ly  the  State  laws  where  the  vessel  is 
employed" 

In  the  present  case,  the  State  laws  not  only  give  the  right 
of  action,  but  provide  for  the  bringing  of  an  action  in  the 
State  courts,  of  course,  so  that  actions  of  this  nature  are 
clearly  within  that  provision  of  the  act  of  1845  which  secures 
to  parties  the  right  to  bring  them  in  the  courts  of  the  State 
where  the  vessel  is  employed. 

The  case  of  Chase,  Admr.,  v.  American  Steamboat  Co. 


1872.]  OF  THE  STATE  OF  NEW  YORK,  435 

Dougan  v.  The  Champlain  Transportation  Co. 

(supra)  was  an  action  brought  in  the  Supreme  Court  of 
Rhode  Island  to  recover  damages  for  the  death  of  the  plain- 
tiff's intestate,  caused  by  a  collision  in  Narraganset  bay,  the 
action  being  brought  under  a  statute  of  that  State,  similar  to 
the  one  under  which  the  action  in  the  case  at  bar  is  brought, 
and  it  was  held  that  the  State  court  had  jurisdiction. 

The  next  ground  on  which  a  nonsuit  was  claimed  was,  that 
there  was  no  evidence  of  negligence  on  the  part  of  the 
defendant. 

The  only  complaint  against  the  defendant  is,  that  it  left  the 
gangway,  where  the  deceased  fell  overboard,  protected  only 
by  a  bar  across  it,  from  three  to  four  feet  above  the  deck. 
No  doubt,  if  it  had  been  protected  also  by  a  bar  of  sufficient 
width  at  the  bottom,  the  accident  would  have  been  prevented. 

"Was  the  omission  of  such  additional  guard  in  the  construc- 
tion of  the  boat  such  negligence  on  the  part  of  the  defendant 
as  to  make  it  liable  in  the  present  case  ? 

It  is  plain  that  the  forward  deck  was  not  a  part  of  the  ves- 
sel intended  for  passengers,  and  that  this  was  evident  to  the 
deceased.  Here  were  no  seats  or  other  accommodations  for 
passengers,  but  ample  and  safe  accommodations  were  pro-, 
vided  in  the  after  part  of  the  boat  and  in  the  saloon  upon  the 
upper  deck.  True,  passengers  were  not  forbidden  to  go  upon 
this  deck,  and  were  suffered  to  be  there ;  but  it  was  not  a 
place  to  which  they  were  invited,  or  where  they  were 
expected  by  the  defendants  to  remain. 

So  far  as  passengers  are  concerned,  it  was  but  the  entrance 
to  the  boat.  It  was  constructed  with  reference  to  its  appro- 
priate uses,  and  not  at  all  in  the  contemplation  of  its  being 
used  as  a  place  for  passengers  to  loiter  or  remain.  All  this 
clearly  appears  from  the  evidence.  Under  such  circumstances, 
I  do  not  think  the  defendant  can  be  charged  with  neglect  of 
duty  to  its  passengers  for  failing  so  to  hedge  up  the  way  that 
they,  being  unnecessarily  upon  this  deck,  could  not  slide  under 
the  bar  through  this  gangway.  And  the  passengers  who  left 
the  inclosed  and  protected  portions  of  the  boat,  intended  foi 


436  CASES  IN  THE  SUPREME  COURT  [June, 

Doligan  0.  The  Champlain  Transportation  Co. 

them,  and  ventured  upon  this  part,  less  protected,  and  not 
intended  for  them,  must  be  deemed  to  do  so  at  their  peril. 

If  passengers,  not  being  forbidden  to  do  so,  should  occa- 
sionally mount  the  wheel-houses  and  bulwarks,  and  one  should 
happen  to  fall  overboard,  it  would  scarcely  be  claimed  that  the 
defendant  was  in  fault  for  not  having  so  protected  those  parts 
of  the  boat  as  to  render  them  secure  against  such  accidents. 

The  extreme  degree  of  care  required  of  defendant,  as  a 
carrier  of  passengers,  for  their  security  against  falling  over- 
board, did  not  require  provision  against  such  accidents  in 
parts  of  the  boat  not  intended  for  passengers,  and  where 
they  are  not  expected  to  be,  and  I  think  defendant  is 
not  chargeable  with  negligence  in  this  case  for  failing  to  pro- 
vide  another  bar  across  the  gangway  in  question. 

As  well  might  a  railroad  company  be  deemed  negligent  for 
omitting  to  fence  in  its  platform,  so  as  to  prevent  passengers 
who  should  prefer  to  ride  there  from  falling  off.  The  same 
answer  applies  in  each  case.  The  place  is  not  intended  for 
passengers  to  ride  in,  and  the  carrier  of  passengers  is,  there- 
fore, not  required  so  to  fence  it  in.  (See  Spooner  v.  Brook- 
lyn City  Railroad  Co.,  31  Barb.,  419.)  Upon  the  question 
of  the  negligence  of  the  deceased,  it  follows,  from  the  view 
above  taken,  that  he  must  be  held  negligent  in  exposing  him- 
self to  the  danger  which  the  occurrence  shows  that  he  encoun- 
tered in  entering  upon  the  forward  deck  at  the  time  and  in 
the  manner  in  which  he  did.  He  voluntarily  and  unneces- 
sarily incurred  the  peril. 

The  error,  if  it  was  so,  in  admitting  proof  of  the  Vermont 
statute  and  amending  the  complaint,  did  no  harm,  as  the  jury 
found  the  locus  in  quo  of  the  accident  in  this  State. 

The  suggestion  that,  by  the  ruling  complained  of,  defend- 
ant was  led  not  to  give  farther  evidence  as  to  the  place  of  the 
occurrence  of  the  accident,  is  answered  by  the  fact  that  the 
ruling  was  after  evidence  on  both  sides,  on  the  question  of 
the  place,  had  been  given,  and  defendant  had  rested.  All 
the  evidence  it  deemed  necessary  on  that  question  was,  there- 
fore, given  by  it. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  437 

Perkins  v.  Giles. 

I  discover  no  other  error  than  those  above  pointed  out.  The 
defendant  was  entitled  to  a  nonsuit  upon  both  the  second  and 
third  grounds,  upon  which  it  was  moved  for.  The  judgment 
and  order  appealed  from  must  be  reversed  and  a  new  trial 
granted,  with  costs  to  abide  the  event. 


HAMILTON  PERKINS,  Appellant,  v.  WILLIAM  GILES  and  CHAELES 
E.  TRACT,  Respondents. 

(GENERAL  TERM,  FOURTH  DEPABTMENT,  JANUABY,  1872.) 

By  an  award  made  upon  submission  to  arbitration,  by  plaintiff  and  defend- 
ant, the  defendant  was  bound  to  make  certain  excavations  provided  the 
plaintiff  contributed  one-third  of  the  expense  of  so  doing.  It  appeared 
that  defendant  made,  after  the  award,  a  portion  of  the  required  excava- 
tions and  called  on  plaintiff  to  contribute  one-third  of  the  expense,  and 
plaintiff  refused  to  do  so.  That  defendant  then  offered  to  make  all  the 
excavations  which  plaintiff  should  require  to  be  made  if  he  would  pay 
one-third  of  the  expense,  and  plaintiff  refused  to  pay  anything  on  account 
of  such  excavations,  and  notified  defendant  tbat  if  he  made  them  he 
would  never  pay  any  portion  of  the  expense. 

Eeld,  that  the  things  to  be  done  by  the  respective  parties  under  the  award 
were  in  the  nature  of  concurrent  acts  or  covenants,  and  that  under  the 
circumstances  the  defendant  was  justified  in  refusing  further  to  perform 
the  award,  and  an  action  for  non-performance  could  not  be  maintained. 

ACTION  for  damages  for  neglect  to  perform  an  award.  The 
facts  sufficiently  appear  in  the  opinion. 

Cox  &  Awry,  for  the  plaintiff. 
D.  Wright,  for  the  defendants. 
Present — MULLIN,  P.  J. ;  JOHNSON  and  TALOOTT,  JJ. 

By  the  Court — JOHNSON,  J.  The  action  was  brought  to 
recover  damages  occasioned  by  the  neglect  and  refusal  of  the 
defendants  to  perform  an  award  in  favor  of  the  plaintiff,  upon 
a  submission  to  arbitration  between  the  parties. 

The  complaint  sets  out  the  award  in  substance,  and  alleges 
that  the  defendants  had  neglected  and  refused  to  perform 


438  CASES  IN  THE  SUPREME  COURT          [Jan., 


Perkins  v.  Giles. 


according  to  the  terms  and  conditions  thereof  in  certain  par- 
ticulars, to  his  injury  and  damage,  etc.  The  complaint  con- 
tains no  averment  that  the  plaintiff  had  performed  the  award 
on  his  part,  or  that  he  had  offered  or  was  willing  so  to  per- 
form. The  question  on  which  the  case  turns  arise  upon  the 
charge  of  the  judge  to  the  jury. 

The  exception  to  that  part  of  the  charge  in  which  construc- 
tion is  given  to  the  award,  is  not  well  taken. 

The  judge,  I  think,  gave  the  true  construction  to  the  award, 
according  not  only  to  its  terms,  but  to  the  intention  of  the 
arbitrator.  The  plaintiff  claims  that,  by  the  terms  and  true 
meaning  of  the  award,  the  defendants  were  bound  to  remove 
all  the  sediment  and  deposits  (including  a  small  island)  which 
had  accumulated  in  the  reservoirs,  pond  and  race-way,  at 
the  time  of  the  submission,  so  as  to  restore  the  whole  to  their 
original  condition  and  capacity.  The  judge  held  and  charged 
that  they  were  only  bound  under  the  award  to  clear  out  so 
much  of  the  sediment  and  deposits  in  the  race-way,  reser- 
voirs and  pond,  which  had  accumulated  there  at  the  time  of 
the  award,  as  obstructed  and  impeded  the  due  flow  of  water 
through  that  water-way. 

That  they  were  not  required  to  excavate  for  the  purpose  of 
keeping  back  and  treasuring  a  supply  of  water.  This  claim 
of  the  plaintiff  is  expressly  negatived  by  the  arbitrator  in  his 
award,  for  he  says  that  the  result  of  the  filling  up  of  the  pond, 
race  and  reservoirs  with  sediment  did  not  enter  into  the  minds 
of  the  original  parties,  and  was  not  contemplated  by  them  in 
making  the  deed,  but  was  one  of  the  inevitable  accidents  refer- 
red to  in  the  deed  as  an  exception  to  the  obligations  of  the 
defendants.  Whether  the  arbitrator  gave  the  right  construc- 
tion to  the  covenants  and  obligations  in  the  deed,  is  not  the 
question.  The  question  is,  how  did  he  award  and  determine 
in  regard  to  them  ?  On  this  question,  I  think,  the  judge  was 
clearly  right. 

The  other  exception,  to  the  other  portion  of  the  charge,  is 
equally  untenable.  There  was  evidence  tending  to  show  that 
the  defendants  went  on  after  the  award  and  made  a  portion 


1872.]  OF  THE  STATE  OF  NEW  YORK.  439 

Perkins  v.  Giles. 

of  the  excavations  required  by  the  award,  and  called  on  the 
plaintiff  to  contribute  one-third  of  the  expense  thereof,  as 
required  of  him  by  the  award,  and  that  the  plaintiff  refused  so 
to  contribute;  that  the  defendants  then  proposed  to  go  on  and 
make  all  the  excavations  and  removals  of  the  deposits  which 
the  plaintiff  should  desire  to  have  made,  in  pursuance  of  the 
award,  if  he  would  pay  one-third  of  the  expense,  according  to 
such  award,  and  that  the  plaintiff  entirely  refused  to  pay  any- 
thing on  account  of  such  excavations,  and  gave  the  defendant 
notice  that  if  they  made  them  he  would  never  pay  any  portion 
of  the  expense.  The  judge  charged  the  jury  that  if  these 
facts  were  established  by  the  evidence  to  their  satisfaction,  the 
plaintiff  could  not  maintain  the  action.  To  this  the  plaintiff 's 
counsel  excepted. 

This  was  clearly  right.  The  things  to  be  done  by  the 
respective  parties  under  the  award  were  in  the  nature  of  con- 
current acts,  or  concurring  covenants. 

The  defendants  were  the  first  to  perform,  but  were  entitled 
to  one- third  of  the  cost  of  performance  immediately  thereupon. 
The  things  to  be  done  by  the  respective  parties  are  not  in  the 
nature  of  separate  and  independent  covenants.  In  such  a 
case  it  has  been  held,  in  an  action  upon  an  award,  upon 
demurrer,  that  in  order  to  make  out  a  cause  of  action,  it  was 
incumbent  on  the  plaintiff  to  aver  performance  on  his  part, 
or  an  offer  to  perform.  (Huy  v.  Brown,  12  Wend.,  591.)  And 
so  it  seems  it  is  a  good  answer  by  way  of  defence,  and  in 
excuse  of  performance  of  the  award  on  which  the  action  is 
brought,  that  the  defendant  tendered  performance  at  the  day, 
and  has  always  been  ready  to  perform,  and  that  the  plaintiff 
discharged  him  from  the  performance,  or  hindered  him  from 
performing,  or  had  himself  omitted  to  perform  a  condition 
precedent.  (Watson  on  Arb.  &  Aw.,  368,  869.) 

Here,  if,  as  the  jury  may  have  found,  the  defendants  offered 
to  perform,  and  the  plaintiff,  after  part  performance  by  them, 
not  only  refused  to  pay  his  portion  for  such  part,  but  gave 
them  notice  that  if  they  went  on  and  performed  he  would 
not  perform  or  fulfill  on  his  part,  their  neglect  to  perform  fur- 


440  CASES  IN  THE  SUPREME  COURT          [Jan., 


Stone  v.  Frost. 


ther  was  justifiable  or  excusable,  and  the  action  for  non-per- 
formance cannot  be  maintained.  The  excavations  were  to  be 
made  for  the  plaintiff's  benefit,  and  if  he  gave  notice  that  he 
did  not  wish  to  have  the  labor  performed  and  would  not  con- 
tribute to  the  expense  according  to  the  award  in  case  it  should 
be  so  performed,  he  may  be  justly  held  to  have  prevented  per- 
formance, and  to  be  estopped  from  claiming  that  the  defend- 
ants have  wrongfully  failed  to  perform  to  his  injury. 

The  case  was  properly  disposed  of  at  the  Circuit,  and  a  new 
trial  should  be  denied,  and  judgment  ordered  for  the  defend- 
ants on  the  verdict. 


BENJAMIN  STONE,  Respondent,  v.  ELI  C.  FKOST,  Appellant. 
(GENERAL  TERM,  FOURTH  DEPARTMENT,  JANUARY,  1872.) 

In  an  action  to  recover  back  money  paid  upon  a  contract  between  plain- 
tiff and  defendant  for  the  sale  and  delivery  of  grape  roots,  on  the 
ground  that  the  contract  was  rescinded,  the  roots  having  turned  out  dead 
and  worthless,  it  seems  that  evidence  that  an  agent  of  the  defendant, 
who  made  the  contract  and  delivered  the  roots,  requested  the  agent  of 
the  plaintiff,  who  received  them,  not  to  undo  the  wrappers  in  which  they 
were  inclosed,  as  the  former  was  about  to  do  for  the  purpose  of  examin- 
ing them,  as  it  was  a  cold  night  and  he  would  not  be  responsible  if  they 
turned  out  not  to  be  right,  was  admissible  as  a  part  of  the  res  gestce  of 
the  delivery  and  acceptance,  and  showing  a  good  reason  for  the  accept- 
ance at  the  time  and  payment  of  the  purchase-price,  without  examina- 
tion in  respect  to  the  condition  of  the  roots. 

The  fact  as  to  whether  a  root  or  other  vegetable  substance  is  dead  or  not 
is  matter  of  such  common  observation  and  experience  that  it  does  not 
require  an  expert  to  testify  in  regard  to  it,  and  the  same  may  be  said  in 
regard  to  the  question  whether  a  dead  grape  root  has  any  marketable  or 
other  value. 

The  roots  being  dead  when  delivered  and  of  no  value  whatever,  no  neces- 
sity existed,  it  se,ems,  for  returning  or  offering  to  return  them  before 
bringing  the  action. 

The  plaintiff  wrote  to  one  who  had  acted  as  defendant's  agent,  in  making 
the  contract  and  delivering  the  roots,  that  the  roots  were  dead  and 
worthless,  and  requested  him  to  come  and  take  them  away  and  pay  back 
the  money,  or  if  he  would  not  to  lay  the  letter  before  defendant.  Shortly 


1872.]  OF  THE  STATE  OF  NEW  YORK.  441 

Stone  v.  Frost. 

afterward  defendant  answered  the  letter  acknowledging  its  receipt  from 
*his  agent,  and  refused  to  comply  with  the  request,  insisting  that  the  roots 

were  in  good  condition. 
Held,  sufficient  evidence  from  which  the  jury  might  have  found  a  notice  to 

defendant  that  the  vines  were  worthless,  and  an  offer  to  return  them. 
Held,  also,  as  matter  of  law,  that  this  letter  and  reply  constituted  sufficient 

notice  to  defendant,  of  the  worthlessness  of  the  roots  and  ofler  to  return 

them,  to  sustain  the  action. 

IN  February,  1866,  the  plaintiff  and  Cyrus  E.  Herrick 
each  and  at  the  same  time  purchased  of  the  defendant  500 
Catawba  grape  roots  for  thirty  dollars,  to  be  delivered  at 
Penn  Yan  depot  the  next  spring,  payable  on  delivery.  The 
roots  were  delivered  and  paid  for  both  at  the  same  time  and 
place,  about  the  16th  of  April  following.  In  each  case  the 
contracts  were  made  by  one  Jones,  as  the  agent  of  the  defend- 
ant. Jones  delivered  the  roots  and  received  the  pay  for  them. 
At  the  time  of  delivery  they  were  tied  up  in  small  bundles 
of  fifty  each  ;  the  small  bundles  were  tied  up  in  one  large 
bundle,  each  man's  bundle  by  itself,  with  moss  and  grass 
wrapped  around  the  larger  bundle  for  protection  ;  and  while 
in  this  condition  the  roots  could  not  be  seen  or  examined  and 
were  not  then  examined,  for  the  reason  that  Jones  objected 
to  it. 

On  the  25th  day  of  April,  Herrick  and  Stone  united  in  a 
joint  letter  to  Jones,  notifying  him  that  the  roots  were  dead 
and  worthless,  and  requesting  him  to  take  them  away  and  do 
what  was  right  about  it,  but  if  he  would  not,  they  requested 
him  to  lay  the  letter  before  the  defendant.  Three  days  after, 
and  on  the  28th  of  April,  the  defendant  acknowledged  the 
receipt  of  the  letter  to  Mr.  Jones,  and  answered  it  as  stated 
in  the  opinion. 

In  June  following,  Stone  went  to  see  Frost  in  relation  to 
these  roots,  to!d  him  they  were  worthless  and  good  for  noth- 
ing, and  demanded  back  the  money  paid  for  them,  which  waa 
refused. 

In  November,  Stone  and  Herrick  went  to  see  Frost,  told 
him  again  the  roots  were  worthless,  and  demanded  back 
their  money. 

LA.XSIXG— VOL.  VI.          f>6 


442  CASES  IN  THE  SUPREME  COURT  [Jan 


Stone  v.  Frost. 


Frost  insisted  that  the  roots  were  all  right  when  delivered, 
and  refused  to  pay  back  the  money.  Afterward,  and  before 
the  commencement  of  this  action,  Herrick  assigned  his  claim 
to  the  plaintiff,  and  this  action  was  brought  to  recover  back 
the  money  paid  on  both  contracts. 

The  case  was  tried  upon  the  issue  made  between  the  par- 
ties and  by  the  pleadings,  namely :  Whether  the  roots  were 
in  good  condition  when  delivered,  or  were  dead  and  utterly 
worthless  and  of  no  value.  At  the  close  of  the  plaintiff 's 
testimony,  the  defendant's  counsel  moved  for  a  nonsuit  upon 
the  following  grounds,  among  others : 

1st.  There  was  no  return  or  offer  to  return  the  vines  in 
question  to  the  defendant. 

2d.  The  letter  to  Jones  is  insufficient  to  constitute  a  tender 
back  of  the  vines  to  the  defendant. 

3d.  The  defendant  was  not  bound  by  the  offer  contained 
in  the  letter  to  Jones. 

The  motion  was  denied  and  defendant  excepted. 

Exceptions  were  taken  to  certain  rulings  of  the  court  in 
the  admission  of  evidence,  and  to  portions  of  the  judge's 
charge  which  appear  sufficiently  in  the  opinion.  After  hear- 
ing the  defendant's  testimony,  the  cause  was  submitted  to  the 
jury  under  the  charge  of  the  judge,  who  found  a  verdict  for 
the  plaintiff  for  $72.84. 

An  application  was  made  by  the  defendant  for  a  new  trial 
on  a  case  at  a  Special  Term  held  at  Canandaigua  on  the  24th 
day  of  April,  1871,  which  was  denied.  Judgment  was 
entered  on  the  6th  day  of  April,  1871,  against  the  defendant 
for  $467.88  damages  and  costs,  and  the  defendant  appealed 
from  the  order  of  the  Special  Term  and  from  the  judgment. 

John  J.  Van  Allen,  for  the  appellant. 

Morris  Brown,  for  the  respondent. 

Present — MULLIN  P.  J. ;  JOHNSON  and  TALCOTT,  JJ. 

By  the  Court — JOHNSON,  J.  This  is  an  appeal  from  an  order 
at  Special  Term  denying  defendant's  motion  for  a  new  trial 


1872.]  OF  THE  STATE  OF  NEW  YORK.  443 

Stone  0.  Frost. 

on  a  case  and  exceptions.  The  action  was  to  recover  -back 
money  paid  by  the  plaintiff,  on  a  contract  between  him  and 
the  defendant,  on  the  ground  that  the  same  was  rescinded. 
The  first  point  made  by  the  defendant's  counsel  is  that  the 
court  erred  in  allowing  the  plaintiff  to  prove  the  declarations 
and  directions  given  by  the  defendant's  agent  at  the  tune  the 
roots  were  delivered  upon  the  contract. 

Jones  was  the  defendant's  agent,  who  made  the  contract 
for  the  sale  and  delivery  of  the  grape  roots  and  who  delivered 
them  on  the  contract.  At  the  time  of  the  delivery  the  roots 
were  done  up  in  bundles  and  covered  with  wrappers. 

The  plaintiff's  agent,  to  whom  they  were  delivered,  was 
about  to  undo  the  wrappers  to  examine  the  roots,  when  the 
defendant's  agent  requested  plaintiff's  agent  not  to  do  so,  as 
it  was  a  cold,  windy  night ;  and  if  they  were  opened  he 
would  not  be  responsible  if  they  turned  out  not  to  be  right, 
and  directed  plaintiff's  agent  what  to  do  with  them,  and  it 
should  be  made  all  right  if  the  roots  were  not  right. 

I  am  of  the  opinion  that  this  evidence  was  competent  as 
part  of  the  transaction  of  delivery  and  acceptance  ;  and  espe- 
cially so,  as  the  defendant  claimed  at  the  trial,  and  now 
claims,  that  the  case  is  within  the  rule  in  Reed  v.  Randall 
(29  N.  Y.,  358),  and  the  delivery  and  acceptance  operated  as 
a  complete  and  perfect  performance  of  the  executory  agree- 
ment on  his  part. 

The  directions  in  regard  to  the  opening  and  examination 
at  the  time  were  part  of  the  res  yestce  of  the  delivery  and 
acceptance.  It  shows  a  good  reason  for  the  acceptance  at 
the  time,  and  payment  of  the  purchase-price,  without  exami- 
nation in  respect  to  the  condition  of  the  roots.  But  even  if 
it  was  error  to  admit  the  evidence,  it  could  not  have  injured 
the  defendant,  as  it  was,  in  effect,  stricken  out  of  the  case, 
and  the  jury  were  directed  to  disregard  it  as  wholly  immate- 
rial, and  instructed  that  the  plaintiff  could  not  recover  unless 
they  should  find  from  the  evidence  that  the  roots  were 
entirely  dead  and  worthless  at  the  time  they  were  delivered 
by  the  defendant  and  received  by  the  plaintiff.  Taken  alto 


444  CASES  IN  THE  SUPREME  COURT  [Jan., 


Stone  ».  Frost. 


gether,  it  is  plainly  to  be  seen  that  the  first  ruling,  if  errone- 
ous, could  not  have  prejudiced  the  defendant's  case.  (Man- 
deville  v.  Guernsey,  51  Barb.,  99.) 

The  exception  to  the  testimony  of  one  or  two  witnesses, 
showing  that  the  roots  were  dead  when  examined  by  them,  is 
not  well  taken.  The  objection  is  that  they  were  not  quali- 
fied to  testify  on  the  subject.  The  fact  as  to  whether  a  root 
or  other  vegetable  substance  is  dead  or  not  is  matter  of  such 
common  observation  and  experience  that  it  does  not  require 
an  expert  to  testify  in  regard  to  it.  The  same  may  be  said 
in  regard  to  the  question  whether  a  dead  grape  root  has  any 
marketable  or  other  value.  On  the  question  what  had  caused 
the  killing  of  the  roots,  the  evidence  was  all  given  by  persons 
skilled  in  that  matter,  and  was  properly  received.  This  evi- 
dence was  pertinent'  and  material  on  the  question  whether 
the  roots  were  in  fact  dead  when  delivered  by  the  defendant's 
agent,  as  there  was  evidence  tending  to  show  that  they  could 
not  have  been  injured  from  that  cause  after  they  were 
delivered.  If  there  was  evidence  sufficient  to  go  to  the  jury 
on  the  question  whether  the  roots  were  dead  and  entirely 
worthless  when  delivered,  as  there  clearly  was,  it  was  a 
proper  case  to  submit  to  a  jury. 

The  defendant's  counsel  contends  that  unless  the  roots  were 
returned  or  offered  to  be  returned  to  the  defendant  the  action 
cannot  be  maintained. 

This  depends  upon  the  question  whether  the  roots  were  of 
any  value  whatever.  The  jury  have  found  by  their  verdict 
that  the  roots  were  dead  when  delivered,  and  of  no  value 
whatever.  They  must  have  so  found,  because  they  were 
expressly  charged  that  unless  they  did  find  in  that  way  their 
verdict  must  be  for  the  defendant.  If  they  could  have  been 
of  no  value  to  the  defendant  had  they  been  returned,  there 
was  no  necessity  of  returning  or«  offering  to  return  before 
bringing  the  action. 

The  idea  on  which  the  obligation  to  return,  before  action  is 
founded,  is  that  the  defendant  should  be  placed  in  as  favora- 
ble condition  as  he  was  before  delivery.  If  the  thing  delivered 


1872.]  OF  THE  STATE  OF  NEW  YORK.  445 


Stone  v.  Frost. 


can  be  of  no  value  whatever  to  any  one,  the  defendant  is  in 
as  favorable  a  condition  as  he  was  when  he  delivered  it,  with- 
out any  return  or  offer  to  return.  It  can  scarcely  be  con- 
ceived that  a  dead  grape  root  can  be  of  any  value  to  any  one. 
But  however  this  may  be,  the  question  as  to  whether  there 
should  have  been  a  return,  or  an  offer  to  return,  was  only 
raised  on  the  motion  for  a  nonsuit  at  the  close  of -the  plain- 
tiff's evidence ;  and  there  was  then  evidence  from  which  the 
jury  might  well  have  found,  if  it  was  a  question  of  fact,  that 
the  plaintiff  had  given  notice  to  the  defendant  that  the  vines 
were  dead  and  worthless,  and  requested  him  to  come  and 
take  them  away  and  pay  back  the  money. 

It  is  true  that  the  plaintiff's  letter,  containing  this  notice 
and  request,  was  addressed  to  the  defendant's  agent,  Jones, 
who  made  the  contract  and  delivered  the  roots. 

But  this  letter,  three  days  after  it  was  dated  and  sent,  was 
answered  by  the  defendant  in  person,  in  which  he  acknow- 
ledges having  received  their  letter  from  his  agent,  and  refuses 
in  substance  to  comply  with  their  request,  and  insists  that 
the  roots  were  in  good  condition  when  delivered.  1  am  of 
the  opinion,  however,  that,  as  matter  of  law,  this  was  a  suffi- 
cient offer  and  notice  to  the  defendant  under  all  the  circum- 
stances. He  certainly  accepted  it  as  such,  and  acted  upon  it, 
and  can  scarcely  now  be  heard  to  say  that  the  offer  and  notice 
were  to  his  agent,  only  and  not  to  himself. 

The  motion  for  a  nonsuit  was  therefore  properly  denied  on 
that  ground. 

The  question  was  not  raised  by  the  charge,  and  does  not 
appear  again  in  the  case.  The  court  charged  the  jury  that  if 
the  roots,  when  delivered,  were  dead  and  entirely  worthless, 
the  plaintiffs  were  entitled  to  their  verdict ;  otherwise  their 
verdict  should  be  for  the  defendant. 

To  this  there  was  no  exception  by  the  defendant's  counsel, 
and  no  request  to  charge  otherwise. 

The  defendant's  counsel  did  request  the  court  to  charge 
that,  upon  the  whole  evidence,  the  plaintiff  was  not  entitled 
to  recover,  and  excepted  to  the  refusal  so  to  charge ;  but  that 


446  CASES  IN  THE  SUPREME  COURT          [Nov., 

Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

request  and  exception  does  not  raise  any  question  in  particu- 
lar, but  goes  to  the  entire  merits  of  the  action.  There  is 
nothing  in  the  exception  to  the  refusal  to  charge  that  the 
plaintiff  could  not  recover  that  portion  of  the  demand 
assigned  to  him  by  Herrick.  It  was  in  fact  assigned,  as 
appeared  by  the  written  assignment,  which  was  undisputed ; 
and  it  was  quite  immaterial  to  the  defendant  what  the  con- 
sideration was  which  passed  between  the  parties  thereto. 

The  action  here  is  not  on  the  contract  to  recover  damages 
as  for  a  breach,  but  is  founded  upon  a  rescission  of  the  con- 
tract, and  is  to  recover  back  the  money  paid. 

Upon  the  facts  found  by  the  jury  the  plaintiff  had  the  clear 
right  to  rescind ;  and  this  right  he  exercised  within  a  reasona- 
ble, time,  under  all  the  circumstances;  and  the  action  to 
recover  back  the  money  paid  is  well  brought. 

The  motion  for  a  new  trial  was,  therefore,  properly  denied, 
and  the  judgment  and  order  must  be  affirmed. 


EGISTO  P.  FABBRI  et  al.,  Respondents,  v.  THE  MERCANTILE 
MUTUAL  INSURANCE  COMPANY,  Appellant. 

(GENERAL  TEEM,  FIBST  DEPARTMENT,  NOVEMBER,  1872.) 

In  an  action  against  a  marine  insurance  company,  plaintiffs  claimed  a 
recovery  by  virtue  of  a  written  application  by  plaintiffs  to  defendant ' '  for 
not  less  than  $10,000,"  marked  "  binding"  by  the  company.  Held,  that  in 
order  to  establish  a  contract  between  the  parties,  evidence  was  admissi- 
ble to  show  that  a  custom  existed  between  the  plaintiffs  and  several 
insurance  companies,  including  the  defendant,  in  cases  where  the  value 
of  property  upon  which  insurance  was  desired  was  not  known  at  the 
time  of  the  application,  by  which  custom  applications  were  made  like 
the  one  mentioned,  to  the  various  companies,  for  insurances  in  sums  in 
the  aggregate  amounting  to  what  plaintiffs  supposed  might  be  the 
actual  value  of  the  property  at  risk,  and  that  such  applications  were 
accepted  and  made  binding  for  such  indefinite  sums,  with  the  under- 
standing that  when  the  value  of  the  property  at  risk  should  be  ascer- 
tained, the  amount  so  insured  by  the  respective  companies  should  be 
declared  and  apportioned  so  that  the  amounts  actually  insured  should 


1872.]  OF  THE  STATE  OF  NEW  YORK.  447 

Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

bear  the  same  proportion  to  the  property  actually  at  risk  as  they  bore  to 
the  aggregate  of  all  the  indefinite  insurances  thereon ;  and  that  after  the 
amount  had  been  so  ascertained  and  fixed,  a  policy  in  the  form  then  in 
use  was  issued  by  the  respective  companies  for  the  precise  sum  so  fixed 
and  adjusted;  and  that  in  this  case  the  plaintiffs,  not  knowing  the  actual 
value  of  the  property,  had  made  insurances  in  like  manner  with  certain 
of  the  other  companies  upon  the  property,  in  various  sums. 
Held,  also,  that  the  contract  created  by  the  acceptance  of  the  application, 
as  explained  by  evidence  of  the  practice  mentioned,  would  render  the 
defendant  liable  for  a  proportionate  amount  of  the  loss  to  the  amount 
insured,  notwithstanding  a  clause  contained  in  the  policies  used  by 
defendant,  to  the  effect  that  if  the  insured  made  any  other  insurance 
upon  the  property,  prior  in  date  to  the  policy,  then  the  defendant  should 
be  answerable  only  for  so  much  as  the  amount  of  such  prior  insurance 
might  be  deficient  toward  fully  covering  the  property  insured,  and 
there  were  other  prior  insurances  effected  by  the  other  companies  suffi- 
cient to  cover  the  actual  loss. 

THIS  is  an  appeal  from  a  judgment  entered  on  the  report  of 
a  referee,  which  directs  that  the  defendant  execute  and  deliver 
to  the  plaintiffs  a  policy  for  $3,688.72,  gold,  and  that  the 
plaintiifs  recover  under  it  that  sum,  with  interest  and  costs. 

The  following  facts  appeared  upon  the  trial,  aud  were 
found  by  the  referee : 

1.  That  before  and  at  the  several  times  mentioned  in  the 
pleadings,  the  plaintiffs  were  copartners  in  trade  and  com- 
merce, carrying  on  such  business  in  the  city  of  New  York, 
under  the  firm  name  of  Fabbri  &  Chauncey,  and  that  the 
defendants  were,  and  still  are,  a  corporation  created  by  and 
existing  under  the  laws  of  the  State  of  New  York,  and  carry- 
ing on  the  business  of  marine  insurance  in  the  said  city  of 
New  York. 

2.  That  previous  to,  and  on  the  16th  of  February,  1867,  the 
ship  Flora  McDonald,  then  owned  by  the  plaintiffs,  was  and 
had  been  for  some  time  previous  lying  at  the  port  of  Valpa- 
raiso, on  the  west  coast  of  South  America,  taking  in  a  cargo 
belonging  to  the  plaintiffs,  and  destined  for  the  port  of  New 
York,  where  it  was  to  be  delivered  to  the  plaintiffs  ;  but  the 
quantity  and  value  thereof   shipped,  and   expected  to  be 
shipped,  was  not  known  to  the  plaintiffs  until  the  time  in  that 
behalf  hereafter  stated. 


448          CASES  IN  THE  SUPREME  COURT          [Nov., 
Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

3.  That  for  some  time  previous  to  the  last  mentioned  date, 
and  previous  to  and  at  the  time  of  effecting  the  insurances 
upon  the    aforesaid  cargo,  as  hereinafter  stated,  there  had 
existed,  and  was  then  existing,  a  practice  and  course  of  deal- 
ings between  the   plaintiffs,  the   Great   Western   Insurance 
Company,  the  Sun  Mutual  Insurance  Company,  the  Orient 
Insurance  Company,  the  Mercantile  Mutual  Insurance  Com- 
pany (the  defendants  above  named),  and  several  of  the  other 
insurance  companies  hereafter  named,  in  effecting  and  making 
marine  insurance  upon  property  belonging  to  the  plaintiffs, 
when  the  precise  value  thereof  was  not  known  at  the  time  the 
application  for  insurance  thereon  was  made,  by  which  prac- 
tice and  course  of  dealing  the  plaintiffs  were  accustomed  to 
make  a  written  application  to  the  said  companies  for  insu- 
rance, in  different  sums,  amounting  in  the  aggregate  to  what 
they  supposed  might  be  the  value  of  the  property  which 
would  be  at  risk ;  and  it  was  stated  in  the  applications  that 
insurance  was  wanted  upon  the  said  property  for  "  about," 
or  "  not  exceeding,"   or   "  not  to  exceed,"  the   sum  stated 
therein,  and  such  applications  were  accepted  and  made  bind- 
ing for  such  indefinite  sums,  with  the  understanding  that 
when  the  value  of  the  property  at  risk  should  be  ascertained, 
the  amount  so  insured  should  be  ascertained  and  apportioned, 
so  that  the  amouut  insured  by  each  should  bear  the  same  pro- 
portion to  the  property  actually  at  risk  as  it  bore  to  the  aggre- 
gate of  all  the  indefinite  insurances  thereon ;  and  that  after 
the  amount  had  been  so  ascertained  and  fixed,  a  policy,  in  the 
form  then  in  use,  was  issued  by  the  respective  underwriters 
for  the  precise  sum  so  ascertained  and  adjusted,  as  aforesaid. 

4.  That,  having  heard  that  their  aforesaid  vessel  was,  at 
the  date  above  mentioned,  at  Valparaiso,  engaged  in  taking 
in  a  cargo  of  wool  for  them  (without  knowing  what  the  value 
thereof  would  be,  but  supposing  and  assuming  that  it  might 
amount  to  about  $156,000,  gold),  the  plaintiffs,  under  and  in 
pursuance  of  the  aforesaid  practice  and  course  of  dealing,  on 
the  5th  of  March,  1867,  made  a  written  application  for  insu- 
rance upon  the  said  property  to  the  Great  Western  Insurance 


1872.]  OF  THE  STATE  OF  NEW  YORK.  449 


Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

Company  for  "  about  $40,000,  gold  ;"  to  the  Sun  Mutual  Insu- 
rance Company  for  " not  to  exceed  $10,000,  gold;"  to  the 
Orient  Insurance  Company,  for  "  not  to  exceed  $20,000,  gold  ;" 
to  the  Mercantile  Mutual  Insurance  Company  (the  defendants 
herein),  for  "not  exceeding  $10,000,  gold,"  in  the  order  of 
time  above  stated,  and  that  each  of  the  said  companies 
accepted  such  applications  and  made  the  insurance  binding. 
The  following  is  a  copy  of  such  aprlication  so  made  to  and 
accepted  by  defendant : 

"  ROBINSON  AND  Cox,  GENERAL  INSURANCE  BROKERS, 

No.  52  William  street,  New  York. 

Insurance  is  wanted  by  Fabbri  &  Chauncey,  for  account  of 
whom  it  may  concern,  loss  payable  to  them  or  order : 

On  wool,  val.  @  18c  per  lb.,  until  otherwise  agreed. 

Oreste,          "      invoice  cost  and  15  p.  c.  added. 

Privileged  to  load  not  exceeding  25  p.  c.  over  registered  ton- 
nage in 

Per  ship  Flora  McDonald, 

At  and  from  port  or  ports  on  W.  C.  S.  Am.  to  New  York. 

Warranted  by  the  assured  free  from  claim  for  loss  or  dam- 
age arising  from  seizure,  detention  or  the  consequences  of  any 

other  hostile  act  of  the  government  or  people  of  any  seceding 

or  revolting  State  of  this  Union, 

For  not  exceeding  $10,000,  in  gold 

Premium  3£  pr.  ct.  less  15  p.  c.,  to  return  £  p.  c.  if  not  load- 
ing over  registered  tonnage  in  ores,  and  no  loss  claimed. 

Master's  name = 

Where  built 

When  built 

Tonnage    

When  last  coppered 

When  last  inspected 

Present  condition 

Rate 

LANSING — VOL.  VI.      57 


450  CASES  IN  THE  SUPREME  COURT         [Nov., 

Fabbri  ®.  The  Mercantile  Mutual  Insurance  Co. 

NEW  YOKK,  March  5,  1867. 
Warranted  to  sail — not  sailed  last  dates. 
Binding. 

(Signed.)  C.  N.  V.,  President. 

R.  &  COX,  Applicants. 
(Signed.)  LETHBRIDGE, 

Payable  in  gold.  For  F.  &  C." 

5.  That  on  the  6th  of  March,  1867,  being  still  ignorant  of 
the  probable  value  of  such  cargo,  the  plaintiffs,  in  like  manner, 
under  the  practice  aforesaid,  made  written  applications  for 
insurance  thereon  to  the  International  Insurance  Company, 
for  "not  exceeding  $5,000,  gold;"  to  the  Phoenix  Insurance 
Company,  for  "  not  to  exceed  $10,000,  gold  ;"  to  the  United 
States  Lloyds,  for  "  not  exceeding  $5,000,  gold ;"  to  the  Man- 
hattan Insurance  Company,  for  "  not  exceeding  $5,000,  gold  ;" 
each  of  which  applications  were  accepted  and  made  binding 
by  the  said  last  mentioned  companies. 

6.  That  the  plaintiffs,  being  still  ignorant  of  the  shipment, 
afterward  applied   for  insurance  thereon  to  the   Insurance 
Company  of  North  America,  for  "  not  to  exceed  $10,000, 
gold ;"    to   the  Delaware  Mutual   Insurance   Company,   for 
"  about,  not  to  exceed  $10,000,  gold  ;"  to  the  Phoenix  Insu- 
rance Company  of  Philadelphia,  for  "  about  $2,500,  gold ;"  to 
the   Insurance  Company  of  the  State  of  Pennsylvania,  for 
"  not  to  exceed  $5,000,  gold  ;"  to  the  Pacific  Insurance  Com- 
pany of  San  Francisco,  for  "  not  exceeding  $20,000,  gold  ;" 
each  of  which  last  mentioned  applications  was  accepted  and 
made  binding. 

7.  That  the  insurances  so  effected  and  made  binding,  as 
above  stated,  amounted  in  the  aggregate  to  $152,500,  gold. 

8.  That  on  the  aforesaid  16th  day  of  February,  1867,  before 
either  of  the  above  mentioned  insurances  had  been  effected, 
the  aforesaid  vessel,  then  lying  at  Valparaiso,  as  above  stated, 
was  destroyed  by  fire,  at  which  time  she  had  only  received  a 
portion  of  the  cargo  intended  to  be  shipped,  that  is  to  say, 
she  then  and  there  had  received  on  board  only  692  bales  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  451 

Fabbri  c.  The  Mercantile  Mutual  Insurance  Co. 

white  wool  and  40  bales  of  black  wool,  all  of  which  was 
destroyed  by  the  said  fire  and  totally  lost,  and  that  at  the  time 
of  such  loss  the  same  amounted  in  value  to  the  sum  of  $56,253 
gold,  of  the  coinage  of  the  United  States. 

9.  That  the  plaintiffs  were  entirely  ignorant  of  such  loss 
at  the  time  they  effected  the  several  insurances  above  men- 
tioned, and  did  not  hear  of  the  same  until  afterward,  and 
somewhere  about  the  3d  of  April,  1867,  at  which,  time  they 
also  ascertained  the  value  of  the  cargo  at  risk,  and  covered  by 
the  aforesaid  insurances,  to  be  the  sum  in  that  behalf  above 
stated. 

10.  That  on -the  said  3d  day  of  April,  having  ascertained  the 
value  of  the  property  at  risk  at  the  time  of  the  loss  aforesaid, 
the  plaintiffs  thereupon  declared  and  made  known   to  the 
defendants  and  to  the  other  insurers  thereof,  according  to 
their  aforesaid  course  of  dealing,  the  value  of  the  property  at 
risk  at  the  time  of  such  loss,  and  apportioned  the  same  among 
the  defendants  and  the  other  insurers  thereof  according  to  the 
practice  aforesaid,  that  the  sum  so  apportioned  to  and  for 
which  the  defendants  became  insurers,  was  $3,688.72. 

11.  That  the  blank  policy  of  insurance  annexed  to  the  com- 
plaint is  the  form  of  policies  then  in  use  by  the  defendants 
upon  similar  applications,  and  the  plaintiffs  then  and  there 
demanded  from  the  defendants  a  policy,  according  to  the 
application  in  all  respects,  except  as  to  the  sum  insured,  which 
was  to  be  $3,688.72  instead  of  $10,000  as  originally  stated  in 
the  application,  which  the  defendants  then  and  there  refused 
to  give. 

12.  That  the  plaintiffs  then  and  there  made  to  the  defend- 
ants due  proof  of  loss  and  of  their  interest  in  the  property 
insured,  and  performed  the  conditions  of  insurance  on  their 
part  to  be  performed,  except  the  pre-payinent  of  the  premium, 
which  the  defendant  had  waived  on  making  the  application 
for  insurance. 

13.  That  the  aggregate  of  the  several  insurances  upon  the 
said  cargo,  made  prior  to  that  of  the  defendants,  as  adjusted 
and  fixed  under  the  practice  and  course  of  dealing  aforesaid, 


452  CASES  IN  THE  SUPREME  COURT         [Nor.,. 

Fabbri  n.  The  Mercantile  Mutual  Insurance  Co. 

did  not  cover  the  plaintiffs'  loss,  but  left  a  balance  due  there- 
for exceeding  the  sum  of  $3,688.72,  the  amount  covered  by 
the  defendants'  policy,  so  adjusted  and  fixed  as  aforesaid, 
which,  by  the  terms  of  the  policy  so  in  use  as  aforesaid, 
became  due  and  payable  on  the  3d  May,  1867. 

14.  That  the  premium  due  and  payable  by  the  plaintiffs  to 
the  defendants,  upon  and  for  the  said  insurance,  amounts  to 
the  sum  of  $115.03  gold,  for  which  the  defendants  are  entitled 
to  credit,  and  which  being  deducted  from  the  loss  above  men- 
tioned leaves  a  balance  of  $3,573.69  gold,  which  with  interest 
thereon  from  3d  May,  1867,  to  the  date  of  this  report,  amounts 
to  the  sum  of  $4,584.75. 

The  referee  decided,  as  matter  of  law,  that  the  plaintiffs 
are  entitled  to  have  a  policy  from  the  defendants  duly  exe- 
cuted in  the  form  of  that  annexed  to  the  complaint,  filled  up, 
according  to  the  application  of  the  plaintiffs,  for  the  amount 
so  adjusted  as  above  mentioned,  and  to  a  judgment  against 
the  said  defendants  for  the  last  above  mentioned  sum  of 
$4,584.75  in  gold  coined  dollars  and  parts  of  dollars  of  the 
coinage  of  the  United  States. 

The  defendant  excepted  to  so  much  of  the  second  finding 
of  fact,  above  set  forth,  as  found  that  the  quantity  and  value  of 
the  cargo  therein  referred  to  expected  to  be  shipped  as  therein 
stated,  was  not  known  to  the  plaintiffs  until  the  time  in  that 
behalf  thereafter  stated. 

Also  to  the  third  finding  generally,  and  that  there  was  not 
evidence  sufficient  to  support  it. 

Also  to  the  tenth  and  thirteenth  findings,  and  to  the  referee's 
conclusions  of  law,  and  each  and  every  of  them. 

Exception  was  also  taken  by  defendant,  on  the  trial,  to  the 
admission  of  evidence  to  prove  the  practice  of  the  various 
companies,  as  stated  in  the  opinion. 

The  blank  policy  of  insurance  above  referred  to,  as  annexed 
to  the  complaint,  contained  the  following  clauses : 

"  Provided  always,  and  it  is  hereby  further  agreed :  That 
if  the  said  assured  shall  have  made  any  other  assurance  upon 
the  premises  aforesaid,  prior  in  date  to  this  policy,  then  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  453 

Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

said  Mercantile  Mutual  Insurance  Company  shall  be  answer- 
able only  for  so  much  as  the  amount  of  such  prior  assurance 
may  be  deficient  toward  fully  covering  the  premises  hereby 
assured ;  and  the  said  Mercantile  Mutual  Insurance  Company 
shall  return  the  premium  upon  so  much  of  the  sum  by  them 
assured  as  they  shall  be  by  such  prior  assurance  exonerated 
from." 

George  W.  Soren,  for  the  respondents. 
Townsend  Scudder,  for  the  appellants. 
Present — LEONARD  and  GILBERT,  JJ. 

By  the  Court — GILBERT,  J.  The  application  for  insurance 
to  defendants  was  for  a  sum  not  exceeding  $10,000  in  gold. 
The  defendants  signified  their  acceptance  of  the  application 
by  writing  upon  it  "  binding."  About  the  same  time  that 
this  application  was  made,  applications  were  made  to  other 
insurance  companies  for  insurance  upon  the  same  property, 
which  applications  were  accepted  in  a  similar  way.  The 
aggregate  amount  of  insurance  sought  by  the  plaintiff 
amounted  to  $152,000,  and  was  to  cover  a  cargo  then  in  pro- 
cess of  shipment.  In  neither  case  was  the  amount  of  risk 
which  either  company  took  definitely  fixed.  It  was  proved 
upon  the  trial,  and  the  referee  has  found  that  there  had  existed, 
and  was  then  existing,  between  the  plaintiffs  and  the  several 
insurance  companies  referred  to,  including  the  defendant,  a 
practice  and  course  of  dealing  in  effecting  marine  insurance 
upon  property  belonging  to  the  plaintiffs,  when  the  precise 
value  thereof  was  not  known  at  the  time  the  application  for 
insurance  thereon  was  made,  by  which  the  plaintiffs  were 
accustomed  to  make  written  applications,  like  those  made  in 
the  instances  referred  to,  being  in  different  sums,  and  amount- 
ing in  the  aggregate  to  what  the  plaintiffs  supposed  might  be 
the  value  of  the  property  which  would  be  at  the  risk,  and  such 
applications  were  accepted  and  made  binding  for  such  indefi- 


454  CASES  IN  THE  SUPREME  COURT         [Nor., 

Fabbri  v.  The  Mercantile  Mutual  Insurance  Co. 

nite  sums,  with  the  understanding  that  when  the  value  of  the 
property  at  risk  should  be  ascertained,  the  amount  so  insured 
should  be  declared  and  apportioned  so  that  the  amount  insured 
by  each  should  bear  the  same  proportion  to  the  property  actu- 
ally at  risk  as  it  bore  to  the  aggregate  of  all  the  indefinite 
insurances  thereon,  and  that  after  the  amount  had  been  so 
ascertained  and  fixed,  a  policy  in  the  form  then  in  use  was 
issued  by  the  respective  underwriters  for  the  precise  sum  so 
ascertained  and  adjusted  as  aforesaid.  It  also  appears,  and 
the  referee  has  so  found,  that  the  value  of  the  property 
intended  to  be  insured  was  not  known  to  the  plaintiff  at  the 
time  such  applications  were  made.  It  is  not  disputed  by  the 
defendant  that  the  contract  created  by  the  acceptance  of  the 
application,  as  explained  by  evidence  of  the  practice  men- 
tioned, would  render  the  defendant  liable  for  a  proportionate 
amount  of  the  loss  in  this  case,  notwithstanding  the  clause  of 
prior  insurance  contained  in  the  policies  used  by  them,  and 
such  no  doubt  is  the  rule  of  law.  But  the  defendant  contends 
that  evidence  of  the  practice  mentioned  was  inadmissible. 
We  think  otherwise.  It  is  true  the  evidence  did  not  prove 
any  general  usage,  nor  was  it  given  for  that  purpose.  It  was 
given  to  show  what  wras  the  actual  contract  between  the 
parties  to  the  action  ;  and  we  think  within  settled  rules  it  was 
not  only  competent,  but  absolutely  essential  for  that  purpose. 
(Duer  Ins.,  vol.  1,  pp.  263  and  57 ;  Bourne  v.  Gatliff,  11  Cl.  & 
Fin.,  45  ;  Bliven  v.  N.  E.  Screw  Co.,  23  How.,  421 ;  Allen  v. 
Merck.  JBL,  22  "Wend.,  215 ;  Vansantvoord  v.  St.  John,  7  Hill, 
1 58.)  The  defendants'  objection  to  the  testimony  of  Hazen, 
even  if  well  founded,  would  not  warrant  us  in  reversing  the 
decision  of  the  referee.  There  being  sufficient  evidence  with- 
out his  testimony  to  sustain  the  judgment,  the  error,  if  any, 
of  tthe  referee  in  omitting  that  testimony  was  not  injurious 
to  the  defendant.  (People  v.  Gonsales,  35  N.  Y.,  59.)  The 
judgment  should  be  affirmed,  with  costs. 


1872.]          OF  THE  STATE  OF  NEW  YORK.  455 


Hackettstown  Bank  v.  Rea. 


THE  HACKETTSTOWN  BANK,  Respondent,  v.  GEORGE  M.  REA, 

Appellant. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

Where  the  maker  and  indorser  of  a  note  reside  in  New  York,  where  it  is 
payable,  the  note  is  not  usurious  because  discounted  in  New  Jersey  for 
more  than  the  legal  rate  of  interest  in  New  Jersey.  The  statute  of  New 
Jersey,  limiting  the  rate  of  interest  to  six  per  cent,  does  not  apply. 

Present — INGRAHAM,  P.  J. ;  LEONARD  and  LEARNED,  JJ. 

LEARNED,  J.     This  is  an  action  of  foreclosure. 

The  defence  is  usury,  consisting  in  this  :  that  a  note,  dated 
and  payable  in  New  York,  was  discounted  at  seven  per  cent 
by  the  plaintiffs,  a  New  Jersey  bank,  the  rate  of  interest 
being  six  per  cent  in  New  Jersey ;  and  that  the  borrower 
paid  the  expressman  seventy-five  cents,  being  his  proper 
charge,  for  bringing  the  money. 

Another  defence  is  that  the  plaintiffs,  a  foreign  corporation, 
kept  an  office  in  New  York  for  the  purpose  of  issuing  money, 
&c. ;  and,  also,  that  they  were  interested  in  a  fund  employed 
for  making  discounts,  &c.,  in  New  York,  in  violation  of  the 
statute  against  unauthorized  banking. 

As  to  the  second  defence,  the  referee  has  found  that  the 
plaintiffs  did  not  keep  any  office  (except  at  Hackettstown)  for 
the  purpose  of  discounting,  &c.,  and  did  not  employ  their 
effects  and  were  not  interested  in  a  fund  for  such  purposes 
(except  at  Hackettstown). 

This  is  a  question  of  fact,  and  we  think  he  found  correctly. 
The  case  of  Suydam  v.  Morris  Canal  Co.  (5  Hill,  491,  n., 
and  6  Hill,  217)  shows  that  transactions  like  those  in  the 
present  case  are  not  necessarily  violations  of  that  act.  It  is 
not  every  loan  made  in  this  State  by  a  foreign  corporation 
which  is  prohibited ;  and  there  is  no  ground  upon  the  evi- 
dence to  disturb  the  referee's  finding. 

In  the  case  of  Jewell  v.  Wright  (30  N.  Y.,  259)  a  note  was 


456  CASES  IN  THE  SUPREME  COURT         [Nov., 

Hackettstown  Bank  v.  Kea. 

made  and  dated  in  New  York,  and  was  payable  here.  It 
was  first  negotiated  in  Connecticut.  The  court  held  that,  on 
the  question  of  usury,  the  laws  of  this  State  applied.  To  the 
same  effect  is  Culler  v.  Wright  (22  N.  Y.,  4/T2).  In  this  pre- 
sent case,  therefore,  where  the  maker  and  indorser  of  the 
notes  lived  in  New  York,  and  where  the  notes  were  drawn, 
dated  and  payable  here,  the  laws  of  New  York  must  govern 
as  to  the  rate  of  interest.  If  drawn  "  with  interest,"  the  rate 
would  have  been  seven  per  cent.  As  they  were  without 
interest  the  same  rate  of  discount  must  be  legal. 

We  do  not  think,  therefore,  that  the  statute  of  New  Jer- 
sey, limiting  interest  to  six  per  cent,  made  the  notes  in  ques- 
tion usurious  and  void,  when  discounted  at  that  rate. 

The  charter  of  the  plaintiffs  contains  a  clause  that  they 
shall  not  take  more  "  than  the  legal  rate  of  interest  for  the 
time  being."  This  undoubtedly  is  but  a  clause  put  in  for 
greater  security.  It  does  not  alter  the  legal  rate,  or  make 
that  illegal  which  would  otherwise  be  legal.  Indeed,  the 
expression  "for  the  time  being"  seems  to  imply  that  there 
might  be  transactions  of  the  bank  in  which  interest  might  be 
taken  lawfully  at  a  rate  greater  than  that  usually  authorized 
in  the  State.  But,  however  that  may  be,  we  see  no  reason 
to  give  to  that  clause  in  the  bank  charter  any  other  effect 
than  that  which  would  result  from  the  general  law  of  New 
Jersey  on  the  subject  of  usury ;  and,  as  appears  by  the  cases 
cited  above,  that  law  does  not  render  these  notes  usurious. 

The  judgment  entered  on  the  report  of  the  referee  should 
be  affirmed,  with  costs. 

INGRAIIAM  and  LEONARD,  JJ.,  concurring. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  457 

Arend  v.  The  Liverpool,  New  York  and  Philadelphia  Steamship  Co. 


OTTO  ABEND,  Respondent,  v.  THE  LIVERPOOL,  NEW  YOKK 
AND  PHILADELPHIA  STEAMSHIP  COMPANY,  Appellant. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

A  cask  of  wine,  shipped  with  defendants,  was  received  by  them  in  good 
order,  and  they  undertook  for  a  reward  to  deliver  it  at  its  destination, 
stipulating  against  liability  by  loss  from  leakage,  damage  from  stowage, 
straining  or  other  peril  of  the  seas.  The  cask  arrived  in  good  condi- 
tion, but  without  any  contents.  In  an  action  brought  to  recover  for  the 
loss,  the  defendants  set  up  as  a  defence  that  the  wine  had  leaked  out, 
and  also  contested  the  alleged  value. 

Held,  that  evidence  of  a  stevedore  as  to  his  experience  of  the  effect  of 
heavy  weather  on  fluids  in  casks  during  a  sea  voyage,  and  also  as  to  the 
condition  of  the  other  casks  containing  fluids  that  came  out  of  the  ves- 
sel at  the  same  time  as  this  one,  was  properly  excluded. 

Also  that  a  motion  for  a  nonsuit,  on  the  ground  that  plaintiff  had  not 
shown  that  the  government  duties  had  been  paid  on  the  wine,  and  a  cus- 
tom-house permit  obtained  to  land  it,  was  properly  denied. 

Also,  the  cause  of  action  having  been  assigned  by  the  owner  of  the  wine 
to  plaintiff,  that  a  question  put  to  the  assignee  as  a  witness,  as  to  the 
consideration  of  the  assignment,  was  properly  overruled. 

Also,  that  a  question  whether  this  wine  did  not  often  deteriorate  coming 
to  this  country  was  properly  excluded. 

A.  custom-house  officer,  who  kept  an  entry  of  an  application  for  a  permit 
to  land  this  cask  of  wine,  was  asked  what  he  found  in  his  memorandum 
as  to  the  valuation  of  this  cask, — Held,  properly  excluded,  there  being 
no  evidence  to  connect  the  importer  with  the  memorandum. 

A  witness  acquainted  with  custom-house  business  and  regulations  was 
asked  to  state  under  what  circumstances  and  on  what  regulations  free 
permits  are  given  at  the  custom  department.  Held,  properly  excluded. 

Held,  also,  that  the  cask  having  been  received  in  good  order,  the  defend- 
ants were  bound  to  show  that  the  loss  occurred  within  some  clause  of 
the  bill  of  lading  exempting  them  from  liability ;  and  that  proving  that 
the  ship  had  a  tempestuous  voyage,  that  the  cargo  was  well  stowed,  and 
that  the  hatches  were  properly  secured,  &c.,  did  not  tend  to  shift  the 
burden  of  proof. 

THIS  was  an  appeal  from  a  judgment  entered  in  favor  of 
the  plaintiff,  on  the  verdict  of  a  jury,  for  $522.20,  the  value  of 
a  cask  of  wine.  The  material  facts  are  stated  in  the  opinion. 

LANSIKG — VOL.  VI.         58 


458  CASES  IN  THE  SUPREME  COURT         [Nov., 

Arend  ».  The  Liverpool,  New  York  and  Philadelphia  Steamship  Co. 

J.  W.  Gerard,  Jr.,  for  the  appellants. 

Chas.  Wehle  and  L.  H.  Rowan,  for  the  respondents. 

Present — LEONARD  and  GILBERT.  JJ. 

LEONARD,  J.  A  cask  of  wine,  shipped  from  Antwerp  to 
Liverpool,  was  received  in  good  order  by  the  defendants,  as 
appears  from  their  bill  of  lading;  and  they  undertook,  for  a 
reward,  to  deliver  it  at  New  York,  stipulating  against  liability 
by  loss  from  leakage,  damage  from  stowage,  straining  or  other 
peril  of  the  seas. 

The  cask  arrived  at  New  York  in  March,  1868,  in  good 
condition,  but  without  any  contents. 

The  defendants  set  up,  as  an  affirmative  defence,  that  the 
wine  leaked  out.  They  also  contested  the  alleged  value. 

The  defendants  attempted  to  prove  several  remote  and 
indirect  facts  and  circumstances,  from  which  it  was  sought  to 
be  inferred  that  the  loss  occurred  from  leakage  in  some  man- 
ner, which  the  court  excluded,  and  defendants  excepted.  A 
stevedore  was  asked  as  to  his  experience  of  the  effect  of 
heavy  weather  on  fluids  in  casks  during  a  sea  voyage ;  and 
also  as  to  the  condition  of  the  other  casks  containing  fluids, 
that  came  out  of  the  vessel  at  the  same  time  as  this.  It  was 
not  offered  to  be  shown  that  casks,  perfectly  sound  at  the  ter- 
mination of  the  voyage,  ever  lost  the  fluids  which  had  been 
put  into  them,  in  consequence  of  severe  or  heavy  weather 
during  the  voyage.  Any  experience  short  of  this  would  fall 
far  short  of  justifying  a  legal  conclusion  that  this  wine  was 
lost  from  a  sound  cask  by  stress  of  weather.  The  evidence 
was  wholly  immaterial  and  properly  excluded. 

A  motion  was  made  to  dismiss  the  complaint  at  the  close 
of  the  plaintiff's  evidence,  for  the  reason  that  he  had  not 
proven  that  the  government  duties  had  been  paid  on  the 
wine,  and  a  custom-house  permit  obtained  to  land  it. 

This  omission  in  no  manner  excused  the  want  of  wine  in 
the  cask.  It  was  nonsense  to  require  the  plaintiff  to  pay 


1872.]  OF  THE  STATE  OF  NEW  YORK.  459 

Arend  v.  The  Liverpool,  New  York  and  Philadelphia  Steamship  Co. 

duty,  or  produce  a  permit  to  land  a  cask  of  wine,  when  the 
wine  was  gone. 

The  importer  of  the  cask  of  wine,  after  learning  that  the 
defendants  had  suffered  a  loss  of  the  wine,  assigned  his  claim 
against  the  defendants  to  the  plaintiff,  who  brought  the  action. 
The  assignor  was  asked,  on  cross-examination,  what  he  sold 
it  for  to  the  plaintiff. 

It  was  insisted  that  it  would  tend  to  show  bias  and  interest 
in  the  witness ;  the  price  for  which  the  claim  sold  was  imma- 
terial, and  might  tend  to  prejudice  the  mind  of  the  jury. 
The  assignor  had  no  legal  claim  against  his  assignee  in  respect 
to  the  price.  Interest  or  bias  do  not  disqualify  a  witness. 
It  may  be  taken  into  consideration  in  weighing  the  value  of 
evidence,  but  there  would  be  no  legitimate  inference  as  to 
interest  or  bias  against  the  witness  on  account  of  the  price. 

Another  witness  was  asked  if  this  wine  did  not  often  dete- 
riorate in  coming  to  this  country.  An  exception  was  taken 
to  its  exclusion.  The  wine  not  having  been  delivered,  it  was 
purely  conjectural  whether  it  would  have  deteriorated.  It 
was  not  claimed  that  such  wine  always  deteriorated.  The 
inquiry  could  prove  nothing  certain  or  material  as  to  the 
wine  in  this  case. 

A  custom-house  officer,  who  kept  an  entry  of  an  applica- 
tion for  a  permit  to  land  this  cask  of  wine,  was  asked  what 
he  found  on  his  memorandum  as  to  the  valuation  of  this  cask. 
It  was  excluded  by  the  judge,  unless  evidence  should  be  given 
to  connect  the  importer  with  the  memorandum.  This  rule 
was  correct.  It  was  worse  than  hearsay,  unless  the  memo- 
randum was  brought  to  the  knowledge  of  the  importer  at  the 
time  it  was  made  or  while  he  remained  the  owner. 

A  witness,  acquainted  with  custom-house  business  and 
regulations,  was  asked  to  state  under  what  circumstances,  and 
Dn  what  valuations,  free  permits  are  given  at  the  custom 
department.  The  question  was  excluded,  and  an  exception 
taken.  The  inquiry  tended  to  prove  nothing  material.  It 
was  not  shown  that  the  importer  had  applied  for  a  free  per- 
mit. It  was  not  claimed  that  there  was  any  statute  about 


460  CASES  IN  THE  SUPREME  COURT          [June, 

Newman  v.  The  People. 

permits.  It  was  of  no  consequence  what  were  the  rules  or 
regulations  of  the  custom-house.  It  does  not  follow  that 
those  rules  are  always  observed.  I  helieve  it  is  not  unusual 
for  the  officials  to  disregard  them  wholly. 

The  cask  having  been  received  in  good  order,  the  defend- 
ants were  bound  to  prove  that  the  loss  occurred  within  some 
clause  of  the  bill  of  lading  exempting  them  from  liability; 
proving  that  the  ship  had  a  tempestuous  voyage,  that  the 
cargo  was  well  stowed,  and  that  the  hatches  were  properly 
secured,  &c.,  did  not  tend  to  shift  the  burden  of  proof. 

The  cask  was  in  good  order  on  arrival,  showing  that  the 
severe  weather  had  not  injured  it,  and,  consequently,  that  the 
loss  of  the  wine  did  not  happen  from  that  cause ;  at  least, 
that  question  could  not  be  taken  from  the  jury,  as  requested 
at  the  close  of  the  evidence.  There  could  be  no  conclusive 
presumption,  in  this  case,  that  the  wine  was  lost  by  stress  of 
weather  or  peril  of  the  seas. 

The  matters  embraced  in  the  third  and  fifth  requests  of 
defendants'  counsel  to  the  court,  in  relation  to  the  charge,  are 
mere  questions  of  fact,  and  were  fully  covered  by  the  charge 
as  given. 

The  judgment  should  be  affirmed,  with  costs. 


HENRY  NEWMAN,  Plaintiff  in  Error,  v.  THE  PEOPLE,  Defend- 
ants in  Error. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  JUNE,  1872.) 

One  who  is  charged  with  a  criminal  offence  may  testify  as  a  witness  in  his 
own  behalf,  under  the  statute  of  1869  (chap.  678),  although  it  appears 
that  he  has  served  out  a  term  in  the  State  prison.  The  law  intended  to 
allow  a  prisoner  the  benefit  and  privilege  of  stating  to  the  jury  any  mat- 
ter which  was  calculated  to  explain  the  charge  against  him,  and  this 
privilege  was  to  be  enjoyed  irrespective  of  any  matter  which  could  dis- 
qualify a  witness  under  ordinary  circumstances.  The  degree  of  credit 
to  which  he  is  entitled  is  a  question  for  the  jury. 

Delamater  v.  The  People,  5  Lansing,  332,  approved  and  followed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  461 

Newman  r>.  The  People. 

THE  facts  sufficiently  appear  from  the  opinion. 
Present — INGRAHAM,  P.  J. ;  LEONARD,  J. 

INGRAHAM,  P.  J.  On  the  trial  of  this  case  in  the  Court  of 
General  Sessions,  the  prisoner  was  put  on  the  stand  and 
examined  as  a  witness  in  his  own  behalf,  under  the  provisions 
of  the  statute  (678  of  Laws  of  1869),  which  provides  that  a 
party  accused  of  crime  shall,  at  his  own  request,  and  not 
otherwise,  be  deemed  a  competent  witness  in  his  own  behalf. 
He  was  examined  at  length  by  the  counsel  for  the  prisoner 
and  by  the  district  attorney.  On  the  cross-examination  he 
was  asked  if  he  had  been  in  the  State  prison ;  he  said  he  had 
served  out  his  term.  On  this  proof  the  district  attorney  asked 
the  court  to  charge  the  jury  to  disregard  his  testimony,  on  the 
ground  that,  having  served  as  a  felon,  being  civilly  dead  in 
law,  he  was  not  competent  as  a  witness.  The  court  so 
instructed  the  jury  to  wholly  disregard  the  testimony  of  the 
prisoner.  We  think  this  was  an  error.  The  law  intended 
to  allow  a  prisoner  the  benefit  and  privilege  of  stating  to  the 
jury  any  matter  which  was  calculated  to  explain  the  charge 
against  him  ;  this  privilege  was  to  be  enjoyed  irrespective  of 
any  matter  which  could  disqualify  a  witness  under  ordinary 
circumstances.  The  degree  of  credit  to  which  he  was  enti- 
tled was  to  be  decided  by  the  jury  and  not  the  court,  and  yet 
the  court  refused  him  the  privilege  given  to  him  by  the  law, 
because  he  was  not  worthy  of  belief.  This  question  has  been 
examined  and  decided  in  third  district,  in  Delamater  v.  The 
People  (5  Lansing,  332).  The  court  in  that  case  say,  "  the 
person  charged  with  any  criminal  offence,  no  matter  how 
infamous,  should  be  permitted  to  testify  in  his  own  behalf." 
It  was  also  an  error  in  the  court,  if  the  testimony  conld  have 
been  excluded,  to  admit  the  testimony  and  then  direct  the 
jury  to  disregard  it.  However  guilty  the  prisoner  may  be, 
he  is  entitled  to  all  that  the  law  gives  him  on  his  trial,  and 
where  the  provisions  and  rules  of  law  are  violated,  it  is  the 
duty  of  the  court  to  direct  a  new  trial. 

Judgment  is  reversed  and  new  trial  ordered. 


462  CASES  IN  THE  SUPREME  COURT          [June, 

Rosenzweig  v.  The  People. 


JACOB  ROSENZWEIG,  Plaintiff  in  Error,  v.  THE  PEOPLE, 
Defendants  in  Error. 

(GENERAL  TERM,    FlRST   DEPARTMENT,  JUNE,   1872.) 

The  rule  is  well  established  that  it  is  not  competent  to  impeach  a  witness 
by  contradicting  him  as  to  facts  disconnected  with  and  collateral  to  the 
subject-matter  at  issue  and  on  trial. 

Accordingly,  where  a  prisoner  on  trial  for  an  abortion  upon  A.  B.,  testified, 
as  a  witness  on  his  own  behalf,  that  he  did  not  know  N.  W.,  a  witness 
then  present  and  pointed  out  to  him,  had  never  seen  her,  and  had  never 
procured  an  abortion  upon  her,  and  afterward  N.  W.  was  called  as  a 
witness,  and,  under  objection,  testified  that  the  prisoner  had  procured  an 
abortion  upon  her, — Held,  that  the  admission  of  this  testimony  was  error, 
for  which  the  judgment  should  be  reversed. 

THE  facts  appear  in  the  opinion. 

Present — INGEAHAM,  P.  J. ;  LEARNED  and  LEONARD,  JJ. 

LEONARD,  J.  The  defendant,  Rosenzweig,  was  indicted 
and  tried  at  the  General  Sessions  of  the  Peace  of  the  city  of 
]STew  York,  for  producing  an  abortion  upon  Alice  Augusta 
Bowlsby,  resulting  in  a  conviction  for  manslaughter  in  the 
second  degree,  and  his  sentence  to  the  State  prison  for  seven 
years.  A  case  of  probable  guilt  was  proven  against  the 
defendant,  at  the  close  of  the  testimony  for  the  prosecution, 
when  he  was  sworn  and  testified  as  a  witness  in  his  own 
behalf,  and  gave  his  explanation  of  the  facts  proven  against 
him,  as  he  was  authorized  to  do  by  an  act  of  the  legislature 
passed  in  1869  (chap.  678).  On  his  cross-examination  by  the 
district  attorney,  he  testified  that  he  did  not  know  Nellie 
Willis,  a  young  woman  present  in  court,  then  pointed  out  to 
him ;  that  he  had  never  seen  her  in  his  life,  and  that  he  had 
never  procured  an  abortion  upon  her.  Nellie  Willis  was 
afterward  sworn  on  behalf  of  the  people,  and  testified,  against 
an  objection  and  exception  by  the  prisoner's  counsel,  that  the 
prisoner  had  produced  an  abortion  upon  her  person  about 
two  years  before,  by  the  use  of  instruments,  at  a  time  when 
she  was  three  and  one-half  months  advanced  in  pregnancy. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  463 

Rosenzweig  v.  The  People. 

The  admission  of  this  testimony  was  an  error,  upon  well" 
established  authority.  It  was  not  competent  to  impeach  the 
prisoner  as  a  witness,  nor  any  other  witness,  by  contradicting 
him  as  to  facts  disconnected  with  or  collateral  to  the  subject- 
matter  at  issue  and  on  trial.  The  prisoner  was  not  indicted 
for  producing  an  abortion  upon  Nellie  Willis,  nor  was  he 
notified  or  prepared  to  meet  that  charge.  No  person  can  be 
required  to  come  into  court  on  a  trial  under  an  indictment 
for  a  specific  offence,  prepared  to  defend  or  explain  other 
transactions  not  connected  with  the  one  on  trial.  There  is 
no  reason  for  doubting,  in  this  particular  case,  that  Nellie 
Willis  testified  truly  ;  but  her  testimony  might  have  been 
false,  and,  having  been  brought  out  unexpectedly,  the  prisoner 
could  not  be  prepared  for  it,  nor  could  he  be  expected,  on 
the  instant,  to  vindicate  himself.  He  would  be  wholly  una- 
ble to  meet  it  were  the  charge  of  Nellie  Willis  unquestiona- 
bly fictitious.  Evidence  of  general  good  character  would  not 
relieve  the  prisoner  from  the  stigma  of  the  crime  proved  by 
Nellie  Willis,  nor  restore  the  presumption  in  his  favor  which 
might  otherwise  have  been  created  by  his  own  evidence. 
Every  person  is  presumed  to  be  able  to  defend  himself  against 
evidence  of  general  bad  character  for  truth,  but  not  so  as  to 
proof  of  particular  acts  of  crime  or  misdemeanor.  The  ille- 
gal evidence  so  admitted  tended  to  damage  the  prisoner's 
case,  by  inducing  a  conviction  in  the  mind  of  the  jury,  from 
the  commission  of  the  previous  offence,  that  he  had  committed 
the  crime  for  which  he  was  then  on  trial.  No  one  can  for  a 
moment  suppose  that  a  person  charged  with  the  crime  of 
murder  should  be  convicted  on  proof  that  he  had  committed 
a  murder  two  years  before  on  another  person.  The  same 
principle  applies  to  this  case,  The  admission  of  illegal  evi- 
dence cannot  be  disregarded  or  excused  upon  the  ground  that 
the  other  evidence  in  the  case  was  sufficient  to  justify  a  con- 
viction. The  conviction  must  be  had  by  legal  evidence  only. 
There  would  be  no  safeguard  for  innocence  if  this  rule  were 
to  be  disregarded.  It  is  in  the  highest  degree  important  that 
justice  should  be  sure  and  speedy,  and  that  when  a  conviction 


464  CASES  IN  THE  SUPREME  COURT          [June, 


Hinde  v.  Smith. 


has  been  had  for  an  offence  fully  proven,  that  the  offender 
should  not  be  able  to  escape  on  technical  grounds,  or  for  rea- 
sons not  involving  the  merits  of  the  subject  of  the  indictment ; 
but  it  is  far  more  important  to  the  cause  of  public  justice  that 
a  fair  trial  should  be  secured,  and  that  no  person  should  suffer 
by  an  illegal  conviction.  A  disregard  of  the  legal  rules  estab- 
lished for  the  attainment  of  truth  on  the  trial  of  an  action  in 
a  court  is  but  a  mockery  of  justice,  and  rapidly  degenerates 
to  the  standard  of  lynch  law. 

The  judgment  must  be  reversed  and  a  new  trial  ordered  at 
the  General  Sessions. 


JOHN  D.  HINDE  and  THOMAS  POKTER,  Jr.,  Respondent,  v. 
JAMES  R.  SMITH,  Jr.,  Appellant. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  JUNE,  1872.) 

The  referee  or  jury  are  best  qualified  to  decide  whether  inconsistencies  in 
testimony  arise  from  willful  prevarication,  or  unintentional  mistake,  or 
defect  in  memory. 

Where  the  testimony  of  a  witness  showed  discrepancies  in  fixing  a  date, 
placing  it  once  at  a  time  inconsistent  with  other  established  facts,  also 
denials  upon  cross-examination  of  his  statements  upon  the  examination 
in  chief,  and  was  contradicted  by  the  defendant  as  a  witness  on  his  own 
behalf, — Held,  that  the  decision  of  the  referee  upon  the  credibility  of  the 
witnesses  would  not  be  disturbed  on  appeal. 

The  measure  of  damage  recoverable  from  a  commercial  factor  or  agent 
who  sells  goods,  intrusted  to  him  for  sale  at  a  specified  price,  at  less  than 
the  price  authorized,  is  the  actual  damage  sustained. 

Accordingly,  in  an  action  against  a  factor  to  recover  for  such  a  sale,  where 
no  increased  market  value  for  the  goods  was  shown  over  the  price 
realized, — Held,  that  there  was  no  damage  and  could  be  no  recovery. 

A  referee's  error  in  computing  too  great  a  sum  as  due  the  plaimiff  is  not 
necessarily  ground  for  reversal  of  his  judgment,  where  the  court  can 
make  the  computation  correctly  and  direct  a  proper  abatement. 

THIS  was  an  appeal  by  the  defendants  from  a  judgment 
against  them,  entered  upon  the  report  of  a  referee. 

The  action  was  brought  to  recover  the  difference  in  the 
price  of  a  quantity  of  whisky  between  the  amount  for  which  • 


1872.]  OF  THE  STATE  OF  NEW  YORK.  465 

Hinde  v.  Smith. 

the  same  was  sold  by  the  defendant,  and  the  price  at  which  he 
was  authorized  to  sell  the  same.  It  appeared  from  the  evidence, 
as  found  bj  the  referee,  that  the  plaintiffs  were  engaged  as 
copartners  in  the  manufacture  of  whisky,  at  Cincinnati,  Ohio, 
and  the  defendant  as  a  commission  merchant  in  New  York 
city,  receiving  consignmems  of  whisky  for  sale  on  commission ; 
that  the  plaintiffs  consigned  a  quantity  of  whisky  to  the 
defendant  for  sale  at  the  price  of  one  dollar  per  gallon,  which 
was  duly  received  by  the  defendant  on  the  2d  of  November, 
1866,  and  sold  by  him  on  or  about  the  13th  of  December 
ensuing  at  the  price  of  seventy  cents  per  gallon,  which  was 
the  full  market  price  of  the  whisky  at  that  time. 

The  referee  gave  judgment  for  the  plaintiffs  for  the  differ- 
ence between  the  price  at  which  the  defendant  was  author- 
ized to  sell  the  whisky  and  the  price  for  which  the  same 
was  sold,  and  for  certain  commissions  on  sales  claimed  by  the 
complaint  as  overcharged,  and  allowing  the  defendant  for 
advances  and  expenses  on  account  of  the  consignment. 

James  Crombie,  for  the  appellant. 
C.  A.  Runlde,  for  the  respondents. 
Present — INGRAHAM,  P.  J. ;  LEONARD,  J. 

LEONARD,  J.  The  witness,  Drake,  called  to  prove  the  case 
on  the  part  of  the  plaintiffs,  testified  uniformly  and  decidedly 
that  the  defendant  was  instructed  to  sell  the  Redman  whisky 
at  one  dollar  per  gallon.  On  his  direct  and  cross-examina- 
tion, and  again  on  being  recalled,  he  attempted  to  fix  the 
date  when  such  instructions  were  given  at  different  periods ; 
and,  on  one  occasion,  apparently,  he  stated  the  time  incon- 
sistently with  the  date  when  the  whisky  was  delivered  ;  and 
further,  denied  that  he  had  given  such  evidence  on  his  first 
examination  in  chief  as  he  had  in  fact  given.  It  is  urged  by 
the  defendant  that  the  referee  ought  to  have  discredited  birn 
for  these  inconsistencies,  and  also  for  the  reason  that  he  was 

LANSING  — VOL.  VL      59 


466  CASES  IN  THE  SUPREME  COURT        [June, 

Hinde  ®.  Smith. 

flatly  contradicted  by  the  defendant  as  a  witness  in  his  own 
behalf.  On  these  questions  of  credibility,  and  the  manner  of 
the  witness  in  stating  evidence,  the  referee  or  the  jury  are 
the  best  judges,  and  we  cannot  assume  to  be  able  to  deter- 
mine more  safely  and  wisely.  There  is  one  thing  to  be 
remarked  in  favor  of  the  holding  of  the  referee  as  to  the 
credit  to  be  attached  to  the  evidence  of  Drake ;  he  was  con- 
sistent and  steady  as  to  the  fact  that  instructions  were  given 
to  hold  the  Redman  whisky  at  one  dollar  per  gallon.  The 
other  matters  giving  the  appearance  of  inconsistent  statements 
might  have  arisen  from  a  defect  of  memory.  The  referee 
must  be  regarded  as  better  qualified  to  decide  whether  these 
inconsistencies  arose  from  willful  prevarication,  or  uninten- 
tional mistake,  or  defect  of  memory. 

The  referee  has  found,  on  the  evidence  of  Drake,  that  the 
instructions  were  given.  The  proof  was  indisputable  that 
the  defendant  sold  the  Redman  whisky  at  seventy  cents  per 
gallon.  The  referee  has  found  that  the  price  at  which  the 
sale  was  made  was  the  full  market  value.  I  have  looked  care- 
fully through  the  evidence,  and  there  is  not  a  particle  to 
prove  that  the  whisky  was  worth  any  more  in  the  market 
than  the  price  for  which  the  defendant  sold  it.  It  is  clear, 
then,  that  the  plaintiffs  have  sustained  no  damage.  He 
should  have  proven  a  subsequent  advance  in  the  price,  if  .the 
fact  was  so.  The  referee  has  allowed,  however,  to  the  plain- 
tiffs the  difference  between  the  price  at  which  the  sale  was 
made  and  that  at  which  the  defendant  was  directed  to  hold 
the  whisky.  This  was  an  error.  No  such  damage,  accord- 
ing to  the  evidence,  has  been  sustained.  (Blot  v.  Boiceau, 
3  Corns.  R.,  78.)  The  rule  is  different  in  the  case  of  articles  of 
art  or  antiquity,  which  have  no  fixed  or  known  market  value. 

I  am  inclined  to  the  opinion  that  the  referee  has  also  made 
a  trifling  error  in  his  computation  of  the  commissions.  If 
that  was  the  only  error,  it  need  not  necessarily  work  a  rever- 
sal of  the  judgment,  as  the  court  could  make  the  computa- 
tion, and,  the  amount  being  too  large,  could  direct  a  corre 
eponding  abatement  or  modification. 


1S72.]  OF  THE  STATE  OF  NEW  YORK.  467 

The  People  v.  The  President,  &c.,  of  New  York  Gas-light  Co. 

The  error  in  regard  to  the  damages  on  the  sale  of  the  Red- 
man whisky  requires  that  there  should  be  a  reversal  of  the 
judgment  and  a  new  trial  before  the  same  referee,  inasmuch 
as  it  may  be  made  to  appear  that  the  price  advanced  subse- 
quent to  the  sale.  Let  the  costs  abide  the  event. 


THE  PEOPLE,  Plaintiffs  in  Error,  v.  THE  PRESIDENT,  &c., 
OF  THE  NEW  YORK  GAS-LIGHT  COMPANY,  Defendants  in 
Error. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  JUNE,  1872.) 

A  company,  authorized  by  the  legislature  to  manufacture  gas  to  be  used  for 
lighting  streets  and  buildings,  cannot  be  indicted  for  creating  a  nuisance 
by  unwholesome  smells,  &c.,  if  its  buildings  and  processes  are  of  the 
best  kind,  its  servants  careful,  and  due  skill  and  diligence  are  used  in  its 
business. 

A  suit  may,  it  seems,  be  maintained  against  the  company  for  a  special 
injury  to  a  private  individual  caused  by  their  works. 

THE  facts  are  sufficiently  stated  in  the  opinion. 
Present — INGRAHAM,  LEONARD  and  GILBERT,  JJ. 

LEONARD,  J.  The  legislature  have  authorized  the  defend- 
ants to  manufacture  gas  to  be  used  for  lighting  streets  and 
buildings  in  the  city  of  New  York,  reserving  the  power  to 
alter,  modify  or  repeal  the  act.  It  is  also  required  by  the 
act  that  it  be  favorably  construed  in  all  courts  for  the  pur- 
poses expressed  therein.  The  defendants'  gas  works  were 
erected  in  1849,  quite  at  the  easterly  extremity  of  Twenty-first 
street  in  the  said  city,  and  the  company  have  ever  since  made 
and  distributed  gas  therefrom  extensively  for  the  purposes 
authorized.  It  is  conceded  that  their  buildings  and  processes 
are  of  the  best,  their  servants  careful,  and  that  they  have  used 
due  care  and  diligence  in  their  business.  The  defendants 
were  indicted  for  creating  a  nuisance,  by  unwholesome  smells, 
amokes  and  stenches,  rendering  the  air  corrupt,  offensive. 


468  CASES  IN  THE  SUPREME  COURT          [June, 

The  People  v.  The  President,  &c.,  of  New  York  Gas-light  Co. 

uncomfortable  and  unwholesome.  It  appears  that  persons 
residing  near  are  much  disturbed  and  sometimes  sickened  by 
the  offensive  smell  which  pervades  the  air  and  penetrates 
their  dwellings  in  certain  rarefied  conditions  of  the  atmosphere, 
particularly  when  an  easterly  wind  prevails. 

The  Court  of  General  Sessions  refused  to  hold  that  the  act 
of  the  legislature  and  the  entire  absence  of  negligence  on  the 
part  of  the  defendants  were  any  defence.  The  power  of  the 
legislature  is  omnipotent  within  constitutional  limits.  It  is 
sufficient  to  authorize  railroads  to  be  run  through  crowded 
thoroughfares  with  locomotives,  causing  great  disturbance  to 
the  citizens  who  reside  near  it,  and  exposing  their  residences 
and  property  to  constant  danger  of  fire  from  the  sparks 
emitted  from  the  engines.  If  unauthorized  by  statute  these 
acts  would  be  a  nuisance.  The  same  power  can  authorize 
dams  to  be  constructed  and  maintained  for  public  purposes, 
although  it  may  render  the  common  air  we  breathe  unwhole- 
some, producing  thereby  disease  and  death  in  its  vicinity. 
The  good  of  the  greatest  number  is  regarded  by  the  legisla- 
ture as  its  justification  for  the  extraordinary  use  of  its  power. 
If  the  railroad  is  carried  on  with  the  greatest  skill  and  care, 
with  every  improvement  and  advantage  known  to  science  and 
experience,  it  is  not  a  nuisance,  although  many  are  injured  in 
property  and  personal  security.  (Davis  v.  The  Mayor,  <&c., 
14:  N.  Y.,  506  ;  Bex  v.  Pease,  4  Barn.  &  Adolph.,  30  ;  Har- 
ris v.  Thompson,  9  Barb.,  350.)  It  may  be  that  private  per- 
sons can  maintain  an  action  for  damages,  as  in  Carhart  v. 
Auburn  Gas-light  Co.  (22  Barb.,  297),  but  the  people  are 
barred  by  the  act  which  their  legislature  have  passed  from 
making  a  public  complaint  by  an  indictment  for  such  a  cause, 
while  the  defendants  conduct  their  business  with  skill,  science 
and  care. 

The  judgment  should  be  reversed. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  469 


Lawrence  t>.  Maxwell. 


ALEXANDER  C.  LAWBENCE,  Respondent,  v.  JAMES  E.  MAX- 

WELL,  Appellant.  53a  19 

(GENERAL  TERM,  FIRST  DEPARTMENT,  JUNE,  1872.) 

A  broker  who,  without  notice  to  his  principal,  disposes  of  stock  of  his 
principal,  deposited  with  him  as  security  against  the  liability  incurred 
by  him  in  making  a  sale  known  as  a  short  sale  of  coin  on  behalf  of  the 
principal,  is  liable  to  such  principal  for  the  conversion  of  the  stock, 
after  a  demand  made  and  refusal  to  deliver  the  same,  and  tender  of  the 
amount  due  upon  the  transaction  in  which  loss  has  occurred. 

Evidence  is  immaterial,  in  an  action  for  such  conversion  tending  to  show  a 
custom  existing  among  brokers,  in  the  city  in  which  the  transactions 
occurred,  to  use  the  stock  held  by  them  as  security  in  the  manner  in 
which  the  stock  was  held  by  the  defendant. 

Evidence  is  also  immaterial  in  such  action  to  show  that  the  defendant  had 
previously  held  stock  of  the  plaintiff  as  security,  which  he  had  used  in  a 
similar  manner  without  objection. 

The  just  and  established  rule  of  damages  in  such  a  case  is  the  highest 
price  of  the  stock  between  the  date  of  the  demand  or  conversion  and 
the  day  of  trial. 


THIS  cause  was  tried  at  a  Circuit  Court,  before  Justice 
BKUNT  and  a  jury,  at  the  city  of  New  York,  on  the  8th  day 
of  June,  1871.  The  action  was  brought  to  recover  damages 
for  the  alleged  conversion  of  400  shares  of  the  Atlantic  Mail 
Steamship  Company.  At  the  several  times  in  question  the 
defendant  was  a  broker,  doing  business  as  such  in  the  city  of 
New  York,  and  the  stock  in  question  was  pledged  by  the 
plaintiff  to  him  as  security  against  loss  for  conducting  certain 
transactions  in  the  purchase  and  sale  of  gold  coin.  At  the 
'  lose  of  these  transactions,  which  embraced  a  period  of  about 
a  month,  the  account  rendered  to  the  plaintiff  by  the  defend- 
ant showed  a  balance  due  to  the  latter  of  $11,600.22,  which 
sum  the  plaintiff  duly  tendered  and  demanded  the  return  of 
the  stock.  The  defendant  refused  to  return  the  stock,  and 
thereupon  this  action  was  brought.  The  defendant  had,  in 
fact,  pledged  the  stock  some  time  before,  on  other  transac 
tions,  to  raise  money  generally  for  his  use. 

The  defence  principally  insisted  upon  at  the  tri*l  was  pre 


470  CASES  IN  THE  SUPREME  COURT         [June, 


Lawrence  v.  Maxwell. 


dicated  upon  an  alleged  custom  and  usage  in  the  city  of  New 
York,  authorizing  brokers  to  sell  or  otherwise  dispose  of  the 
securities  pledged,  as  in  this  case,  as  the  broker  might  deem 
proper. 

The  jury,  under  the  instruction  of  the  court,  as  stated  in 
the  opinion,  found  a  verdict  for  the  plaintiff  for  $36,098.22, 
on  which  judgment  was  entered,  and  the  defendant  appealed. 

W.  W.  McFarland,  for  the  respondent. 
John  E.  Burrill,  for  the  appellant. 
Present — LEONARD  and  GILBERT,  JJ. 

LEONARD,  J.  No  exception  having  been  taken  to  the 
charge  of  the  judge  at  the  trial,  it  must  be  assumed  that  the 
case  was  properly  submitted  to  the  jury,  and  that  they  have 
found,  in  conformity  with  the  evidence  of  the  plaintiff,  that 
there  was  no  consent  on  his  part  that  the  defendant  might 
use  the  400  shares  of  the  stock  of  the  Atlantic  Mail  Steam- 
ship Company  deposited  with  him  by  the  plaintiff.  It  must, 
then,  be  considered  as  security  against  the  liability  which  the 
defendant  assumed  for  the  plaintiff,  as  agent  in  selling  a  large 
amount  of  gold  coin,  which  neither  the  plaintiff  or  defendant 
possessed.  It  is  a  sale  known  among  stock  operators  as  a 
short  sale.  Such  sales  are  effected  by  a  contract  made  by  the 
broker  with  some  other  party  to  deliver  the  article  sold  at  a 
specified  day  in  the  future,  or  by  selling  the  article,  and  bor- 
rowing it  to  make  immediate  delivery.  In  the  latter  case  the 
broker  or  agent  becomes  indebted  to  the  party  from  whom 
the  gold  or  stock  has  been  borrowed,  and  liable  to  return  the 
article  borrowed  in  specie,  when  called  for,  or  on  whatever 
terms  it  has  been  borrowed.  He  is  thus  exposed  to  the 
fluctuations  of  the  market,  by  a  rise  or  fall,  in  the  same  man- 
ner that  he  would  be  if  the  gold  or  stock  had  been  sold  to  be 
delivered  at  a  future  day.  The  latter  form  was  adopted  in 
this  case.  By  the  rise  in  the  price  of  gold  a  loss  of  about 
$11,600  ensued,  at  the  time  when  the  plaintiff  directed  the 
defendant  to  close  the  transaction.  What  were  the  rights  of 


1872.]  OF  THE  STATE  OF  NEW  YORK.  471 


Lawrenc*  v.  Maxwell. 


the  defendant,  as  against  the  plaintiff  or  the  said  stock ! 
Before  he  could  lawfully  sell  the  stock,  it  was  his  duty  to  noti- 
fy the  plaintiff  of  the  amount  due  to  him,  and  call  on  him  for 
payment.  If  the  plaintiff  neglected  to  provide  money  to  meet 
the  losses  sustained  by  the  defendant  on  the  liability  incurred 
as  the  plaintiff's  agent,  he  might,  on  due  notice,  sell  so  much 
stock  held  as  security  as  ^should  be  necessary  to  raise  the  sum 
required.  The  defendant  was  at  liberty  to  call  for  money  as 
fast  as  loss  accrued ;  but  before  he  used  the  stock,  his  duty, 
as  well  as  the  law,  required  that  he  should  call  on  the  plain- 
tiff for  money  to  meet  his  loss,  or  get  his  consent  to  use  or 
borrow  upon  the  stock  which  had  been  deposited  with  him. 
The  defendant  did  not  adopt  such  a  course.  He  used  the 
stock  to  borrow  money  for  his  own  purposes,  or  otherwise 
disposed  of  it,  without  any  consent  of  the  plaintiff. 

He  offered  evidence  at  the  trial  to  prove  that  it  was  cus- 
tomary among  brokers  in  New  York  to  use  the  stock  held  by 
them  as  security,  in  the  manner  this  stock  was  held  by  the 
defendant,  and,  upon  objection,  such  evidence  was  excluded. 
Also,  that  the  defendant  had  previously  held  stock  of  the 
plaintiff  as  security,  which  he  had  used  in  a  similar  manner 
without  objection  or  complaint  on  the  part  of  the  plaintiff, 
although  he  knew  of  it ;  this  was  also  excluded.  The  evi- 
dence so  offered  was  clearly  immaterial.  Such  a  custom  is 
simply  a  violation  of  the  rights  of  the  principal.  A  long- 
continued  course  of  wrong-doing  or  violation  of  law  will 
never  prove  a  valid  custom  to  continue  it.  Brokers  who  use 
the  stock  of  their  principals,  relying  upon  any  such  custom, 
are  liable  to  return  it  when  called  upon,  if  their  demands  or 
liabilities,  incurred  on  the  security  of  the  stock,  have  been 
satisfied.  If  they  cannot  return  it,  they  are  liable  in  damages 
for  the  injury  which  has  been  caused  by  the  loss  of  the  stock. 
It  is  a  clear  violation  of  trust,  and  an  action,  as  for  a  conver- 
sion of  the  stock,  is  within  the  election  of  the  principal.  The 
just  and  established  rule  of  damages  in  such  a  case  is  the 
highest  price  of  the  stock  between  the  date  of  the  demand  or 
conversion  and  the  day  of  trial.  Such  was  the  rule  adopted, 


472  CASES  IN  THE  SUPREME  COURT        [Nov., 

Muller  «.  Pondir. 

correctly,  at  the  trial  of  this  action.  It  is  no  excuse  or  defence 
that  the  broker  has  taken  advantage  of  the  possession  of  his 
principal's  stock,  and  used  it  without  complaint  on  his  part, 
on  previous  occasions.  On  those  occasions  he  returned  or 
accounted  for  the  stock  so  used,  and  no  cause  of  complaint 
remained. 

There  appears  to  be  no  exception  in  the  case  as  to  the  rule 
of  damages  adopted  at  the  trial. 

The  judgment  should  be  affirmed,  with  costs. 

GILBERT,  J.    No  point  having  been  made  as  to  validity  of 
contract,  I  concur.     (See  48  Barb.,  593  ;  55  Pa.,  294.) 
Judgment  affirmed. 


GEORGE  H.  MULLER,  Appellant,  v.  JOHN  PONDIR,  impleaded, 
&c.,  Respondent. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

The  right  of  stoppage  in  transitu  is  applicable  to  bills  of  exchange. 

So  held  of  bills  purchased  by  the  sender  with  his  own  funds,  but  upon 
the  request  and  for  the  benefit  of  the  person  to  whom  they  were  sent. 

One  who  has  obtained  knowledge  of  a  private  communication  addressed 
to  another  party  cannot  claim  to  estop  the  person  making  the  communi- 
cation by  statements  therein  contained. 

Accordingly  fold,  that  a  telegram  from  the  sender  of  such  bills  of  exchange, 
informing  the  person  to  whom  they  are  sent,  of  the  transmission,  and 
describing  the  character  of  the  bills,  is  not  such  an  admission  of  the 
latter's  ownership  that,  if  he  obtains  credit  on  the  strength  of  the  tele- 
gram, it  will  estop  the  sender  from  reclaiming  the  bills  in  transitu . 

Such  a  telegram  has  none  of  the  qualities  of  a  bill  of  lading,  and  a  transfer 
of  it  does  not  cut  off  the  sender's  rights  in  transitu. 

A  transfer  of  negotiable  bills  without  indorsement  by  the  payee,  confers 
no  other  rights  than  those  of  the  transferor. 

An  agreement  of  the  person  to  whom  bills  of  exchange  have  been  sent  to 
hand  them  over  when  received,  is  no  t  a  present  transfer,  delivery,  or 
assignment,  of  them. 

Without  the  means  of  obtaining  possession  of  bills  of  exchange,  one  who 
claims  them  as  security  for  a  loan  by  title  from  the  party  to  whom  they 
were  sent,  and  against  the  sender  cannot,  before  delivery,  be  a  pledgee 
of  them. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  473 

Muller  v.  Pondir. 

In  the  absence  of  proof,  as  to  the  amount  of  labor  performed  by  a  receiver, 
the  reasonable  rate  of  allowance  for  his  commissions  and  expenses  is 
according  to  the  rate  fixed  by  the  statute  for  executors. 

APPEAL  from  a  judgment  entered  in  the  action  after  a  trial 
before  one  of  the  justices  of  the  Supreme  Court  without  a  jury, 
upon  his  decision  directing  judgment  in  favor  of  the  defend- 
ant, Pondir,  for  the  amount  of  certain  bills,  less  receiver's 
fees ;  and  also  from  an  order  entered,  fixing  the  commissions 
and  expenses  of  the  receiver  therein.  The  facts  are  stated  in 
the  opinion. 

T.  C.  T.  Buckley  and  E.  W.  Stoughton,  for  the  appellant. 

W.  W.  McFarland,  for  the  respondent. 

Present — INGRAHAM,  P.  J. ;  LEONARD  and  LEARNED,  JJ. 

LEAKNED,  J.  The  plaintiff  Muller,  under  the  name  of 
Muller  &  Co.,  a  correspondent  at  Havana  of  Schepeler  &  Co. 
of  New  York,  drew  bills  in  his  firm  name  on  Schrosder  &  Co. 
of  London  and  sold  them.  With  the  avails  he  bought  cur- 
rency bills  on  New  York,  and  the  same  were  made  payable 
to  the  order  of  Smith,  a  clerk  of  Schepeler  &  Co.  This 
transaction  was  all  done  at  the  request  and  by  the  direction 
of  Schepeler  &  Co.  through  a  telegram.  At  this  time 
Schepeler  &  Co.  were  indebted  to  Schrceder  &  Co.  over 
£10,000,  and  Muller  &  Co.  were  not  indebted  to  Schepeler 
&  Co.  in  any  amount.  These  currency  bills,  amounting  in 
the  aggregate  to  $60,000,  were  on  the  13th  day  of  May,  1869, 
by  Muller  &  Co.,  inclosed  in  an  envelope,  directed  to  Schepeler 
&  Co.,  and  delivered  to  the  purser  of  the  Cleopatra  at  Havana, 
to  be  by  him  deposited  in  the  post-office  at  New  York.  At 
three  o'clock  of  Saturday,  the  loth  of  May,  Schepeler  &  Co. 
failed  for  a  large  sum.  On  the  morning  of  Monday,  the  17th, 
Muller  &  Co.  hearing  of  this  failure,  telegraphed  to  Muller  & 
Bastian,  their  agents  at  New  York ;  and  in  pursuance  of  this 
telegram  these  agents  on  that  day  requested  Schepeler  &  Co. 

LAXSIXG — VOL.  VI.        60 


474  CASES  IN  THE  SUPREME  COURT          [Nov., 


Muller  v.  Pondir. 


to  hand  to  them  the  letter  inclosing  these  bills  on  its  arrival ; 
the  Cleopatra  not  having  then  arrived. 

There  is  some  conflict  as  to  the  conversation  at  that  time ; 
but  it  appears  by  all  the  witnesses  that  Schepeler  &  Co.  did 
not  at  the  time  make  any  claim,  on  their  own  account,  to  the 
bills,  nor  dispute  the  justice  of  giving  them  up  to  Muller  & 
Co.,  so  far  as  Schepeler  &  Co.'s  rights  were  concerned.  It 
was  claimed  that  the  rights  of  other  parties  had  intervened, 
as  hereinafter  stated.  Early  on  Tuesday,  the  18th,  this  action 
was  commenced,  and  the  injunction  was  served  on  Schepeler 
&  Co.  by  nine  A.  M.  On  that  same  day,  the  18th,  the  Cleopatra 
arrived.  The  agents  of  Muller  &  Co.  applied  by  seven  A.  M. 
at  the  post-office  for  the  letter  inclosing  the  remittance,  but  it 
was  not  there.  About  twelve  o'clock  noon  of  that  day  the 
letter  was  deposited  in  the  post-office,  and  the  agents  of  Mul- 
ler &  Co.  again  applied  for  it.  The  delivery  of  the  letter 
and  remittance  to  Schepeler  &  Co.  having  been  enjoined  in 
this  action,  the  funds  in  dispute  have  passed  into  the  hands 
of  a  receiver,  who  holds  them  subject  to  the  final  judgment 
herein. 

On  the  13th  of  May  the  plaintiff  telegraphed  Schepeler  & 
Co.  as  follows : 

"  To  SCHEPELER  &  Co.,  New  York : 

"  Drew  nine  (9),  twelve  (12)  and  eleven  three-quarters  (llf), 
remit  Cleopatra,  sixty  thousand  (60,000),  twenty-six  half  (26£). 

"MULLER." 

On  the  morning  of  the  14th,  Schepeler  &  Co.  called 
on  the  defendant  Pondir,  exhibited  to  him  this  telegram, 
and  applied  for  a  loan  of  $70,000.  Pondir  consented 
to  make  the  loan  if  Schepeler  &  Co.  would  surrender 
the  telegram  and  write  a  letter  expressing  their  understand- 
ing. Accordingly,  on  that  day,  Schepeler  &  Co.  wrote  the 
following  letter  inclosing  the  telegram : 

"  NEW  YORK,  Uth  May,  1869. 
"  JOHN  PONDIR,  Esq. : 

"  DEAR  SIR. — Being  in  want  of  some  funds  and  not  having 
any  available  securities  at  hand,  we  inclose  the  cable  tele- 


1872.]  OF  THE  STATE  OF  NEW  YORK.  475 


Muller  v.  Pondir. 


gram  from  Havana  advising  remittance  of  about  $60,000, 
currency,  which,  in  case  you  can  furnish  us  the  money,  we 
shall  hand  over  to  you  on  their  arrival. 

"  Yours  truly, 
(Signed)  "  SCHEPELER  &  CO." 

And  thereupon  Pondir,  on  that  day,  loaned  them  $70,000. 

On  this  state  of  facts  it  was  held  by  the  learned  justice  who 
tried  the  cause,  that,  as  against  Schepeler  &  Co.,  the  plain- 
tiff had  no  right  to  stop  the  currency  bills  in  transitu,  and 
that  therefore  Pondir  was  entitled  to  recover ;  although  he 
could  not  be  regarded  as  having  parted  with  his  money  in  the 
usual  course  of  business,  because  the  notes  were  not  indorsed 
or  delivered  to  him.  It  may  be  remarked,  in  passing,  that  in 
this  view  of  the  case ;  that  is,  if  Muller  had  no  right  to  the 
bills,  and  if  Pondir  did  not  part  with  his  money  in  the  usual 
course  of  business,  but  relied  on  Schepeler's  agreement,  then 
it  would  seem  to  follow  that  the  funds  would  have  to  go  to 
Schepeler  &  Co.'s  general  assignee,  if  they  had  one. 

The  first  inquiry  then  must  be,  what  are  the  rights  of  the 
plaintiff  in  respect  to  these  bills  as  against  Schepeler  &  Co. 
Schepeler  &  Co.  had  parted  with  nothing  for  the  bills, 'and  had 
assumed  no  obligation  for  them.  Their  obligation  to  protect 
the  sterling  bills  drawn  by  Muller  &  Co.  on  Schrceder  &  Co. 
was  practically  only  an  obligation  to  repay  to  Muller  &  Co. 
money  advanced  for  their  benefit ;  or,  more  strictly,  it  was  an 
obligation  to  protect  Muller  &  Co.  against  a  liability  assumed 
for  their  benefit.  When  Muller  &  Co.  purchased  these  currency 
bills  with  funds  raised  on  their  own  credit ;  either  they  owned 
the  bills  absolutely,  or  at  least  they  had  a  right  to  retain  them 
in  case  of  Schepeler  &  Company's  failure.  Suppose  that  before 
Muller  &  Co.  had  delivered  these  bills  to  the  purser  of  the 
ship,  the  failure  had  occurred  and  they  had  heard  of  it ;  would 
it  be  claimed  that  Muller  &  Co.  were  bound  to  forward  these 
bills  to  a  bankrupt  house  ?  It  is  unnecessary  to  argue  such  a 
question.  Suppose  that  they  had  heard  of  the  failure  before 
the  sailing  of  the  Cle  patra,  could  they  not  have  reclaimed 


476  CASES  IN  THE  SUPREME  COURT      [Nov., 

Muller  v.  Pondir. 

the  bills  from  the  purser?  And  so  coming  farther  down 
until  the  time  that  the  property  actually  should  reach  the 
possession  of  Schepeler  &  Co.,  what  principle  of  justice  should 
prevent  Muller  &  Co.  from  reclaiming  property  (or  bills  of 
exchange)  for  which  they  had  paid  the  full  value,  and  Schep 
eler  &  Co.  had  paid  nothing  ? 

In  Harris  v.  Pratt  (IT  N.  Y.,  at  p.  263),  it  is  well  said  by 
Judge  STKONG,  that  "  the  basis  of  this  right  (of  stoppage  in 
transitu)  is,  that  the  insolvency  of  the  vendee  was  not  con- 
templated by  the  vendor  in  the  sale,  and  that  it  is  plainly 
just  that  he  should,  on  account  of  that  unforeseen  event 
endangering  the  loss  of  the  price  to  be  paid,  be  permitted  to 
reclaim  the  goods  and  keep  them  as  security  for  payment  at 
any  time  before  a  delivery  terminating  their  transit."  In 
the  present  case  there  is  no  question  that  the  plaintiff 
exercised  his  right  before  the  delivery  terminating  the 
transit.  The  point,  however,  insisted  on  by  the  defendant 
and  on  whish  the  learned  judge  who  tried  the  action, 
decided  it,  is  that  the  plaintiff  was  a  surety,  and 
therefore  did  not  stand  in  such  a  relation  to  Schepeler  &  Co. 
as  authorized  him  to  stop  the  bills  in  transitu  And  this 
view  was  supported  by  the  case  of  Siffken  v.  Wray  (6  East., 
371).  In  that  case,  Browne,  the  bankrupt  vendee,  after  his 
bankruptcy,  received  the  bills  of  lading  and  delivered  them 
to  the  defendant  Wray,  an  agent  of  one  Fritzing,  that  he 
might  apply  the  avails  of  the  goods  to  the  payment  of  the 
drafts  drawn  against  them.  Dubois  &  Co.  were  the  shippers 
of  the  goods.  Fritzing  had  accepted  their  drafts,  at  the 
request  of  Browne.  It  was  held  that  the  proceeding  was  not 
a  stoppage  in  transitu,  because  it  was  not  done  adversely, 
but  the  goods  were  obtained  by  the  voluntary  agreement  of 
the  bankrupt ;  that  Fritzing  had  no  right  to  stop  in  transitu, 
because  he  was  not  a  vendor,  but  only  a  surety  to  the  vendor ; 
and  that  Dubois  &  Co.  had  not  in  fact  stopped  the  goods, 
because  the  defendant  "Wray  was  not  their  agent.  Now,  if 
that  case  be  analogous  to  the  present,  then  Schrceder  &  Co., 
if  they  had  accepted  the  sterling  bills,  would  be  the  parties 


1872.]  OF  THE  STATE  OF  NEW  YORK  477 

Muller  v.  Pondir. 

in  the  position  analogous  to  that  of  Fritzing ;  while  Mullei 
&  Co.  would  be  in  the  position  analagous  to  that  of  Dubois 
&  Co.  And  the  decision  in  that  case  was  not  that  Dubois  & 
Co.  could  not  have  stopped  the  goods,  but  that  they  did  not. 
They  were  not  parties  to  the  attempt  to  get  possession  of  the 
goods.  The  decision  was,  that  Fritzing  could  not  stop  the 
goods ;  and  the  principle  involved  might  be  material  here  if 
this  were  an  action  by  Sehroader  &  Co.  after  acceptance  of 
the  sterling  bills.  But  this  is  an  action  by  Muller,  who  occu- 
pies the  same  relative  position  with  that  of  Dubois  &  Co.  in 
that  case.  That  decision  is  only  important,  therefore,  in  this 
respect,  that  it  incidentally  implies  that  Dubois  &  Co.  might 
have  stopped  the  goods ;  and  this  supports  the  rights  of  this 
plaintiff. 

Turning  then  to  the  case  of  Feise  v.  Wray  (3  East.,  93),  we 
shall  find  it  decisive  in  favor  of  the  plaintiff  as  against  Schepe- 
ler  Co.,  unless  a  rule  is  to  be  applied  to  bills  of  exchange  dif- 
ferent from  that  whicli  was  there  applied  to  merchandise.  I 
see  no  reason  for  any  difference,  and,  both  on  principle  and 
authority,  I  think  that  as  against  Schepeler  &  Co.  the  plain- 
tiff's right  is  clear  and  just.  The  next  question  to  consider 
is,  whether  Pondir,  by  the  transaction  of  May  14th,  acquired 
any  better  title  than  Schepeler  &  Co.  had. 

The  learned  justice  was  of  opinion  that  he  could  not  be 
regarded  as  having  parted  with  his  money  in  the  usual  course 
of  business,  because  the  notes  were  not  indorsed  and  delivered 
to  him.  This  is  a  familiar  principle,  which,  in  the  absence 
of  any  peculiar  circumstances,  would  be  decisive.  But  the 
defendant  Pondir,  relies  on  the  telegram  of  Muller,  shown  to 
him ;  and  claims  that  he  parted  with  his  money  on  the  strength 
of  the  information  therein  contained. 

In  examining  the  effect  of  this  telegram,  it  is  to  be  noticed 
that  nothing  which  Schepeler  wrote  or  said  to  Pondir  at  the 
time  of  the  transaction  is  binding  on  Muller  by  way  of  admis- 
sion or  estopped.  For  instance,  Schepeler  said  that  they 
were  expecting  money  from  Havana;  and  he  wrote  at  Pon- 
dir's  request  a  letter  to  him,  saying  that  the  telegram  advised 


478  CASES  IN  THE  SUPREME  COURT         [Nov., 

Muller  v.  Pondir. 

a  remittance  of  $60,000  currency.  Now  these  statements  of 
Scbepeler  can  in  no  way  affect  Muller's  right.  To  illustrate ; 
if  there  had  been  no  telegram  from  Muller,  and  if  Schepeler, 
knowing  the  fact  of  this  remittance,  had  made  to  Pondir  the 
same  statements,  it  is  clear  that  such  statements  could  not  in 
any  way  estop  Muller. 

Suppose  that  Muller  had  bought  these  bills  entirely  on 
his  own  account  and  had  sent  them  to  Schepeler,  being  him- 
self the  absolute  owner  of  them :  if,  under  such  circum- 
stances, Schepeler  had  pretended  to  Pondir  that  the  bills 
which  he  was  about  to  receive  were  his  own,  such  pretences 
eould  not  have  deprived  Muller  of  his  property. 

"We  must  then  confine  ourselves  to  Muller's  telegram  and 
to  Schepeler's  acts ;  and  the  inquiry  must  be,  what  did  that 
telegram  authorize  a  third  party  to  believe  in  respect  to  these 
bills,  and  what  did  Schepeler  do  in  respect  to  them  at  the 
time  of  the  loan. 

Giving  the  telegram,  so  far  as  it  touches  these  bills,  its  full 
import,  it  can  only  mean  that  Muller  &  Company  had 
remitted  to  Schepeler  &  Co.,  by  the  Cleopatra,  $60,000 
of  currency  bills,  purchased  at  twenty-six  and  a  half  discount. 
As  to  the  ownership  of  the  bills ;  the  purposes  for  which  they 
were  transmitted,  or  the  respective  rights  of  Muller  &  Co.  and 
Schepeler  &  Co.  therein,  the  telegram  is  silent.  It  is  such  a 
telegram  as  might  have  been  sent  if  the  remittance  had  been 
absolutely  the  property  of  Muller  &  Co.,  and  had  been  sent 
by  them  for  some  special  purpose  to  Schepeler  &  Co.  It 
contains  no  statement  or  admission  that  the  bills  of  exchange 
belonged  to  Schepeler  &  Co.  Again,  a  telegram  is  a  private 
communication.  It  is  not  addressed  to  the  public  or  to  whom- 
ever may  see  it.  Often  from  its  brevity  it  can  only  be  cor- 
rectly understood  by  the  person  to  whom  it  is  sent;  and 
often,  therefore,  no  document  is  so  unsuited  for  the  perusal 
of  third  parties.  It  is  not  necessary  in  a  telegram  to  guard 
against  the  misunderstanding  of  it  by  the  public.  It  is 
enough  that  the  receiver  knows  its  meaning.  Even  then  if 
this  telegram  had  contained  admission  of  Schepeler  &  Co.'s 


1872.]          OF  THE  STATE  OF  NEW  YORK.  479 

Muller  v.  Pondir. 

ownership  of  the  bills,  Pondir  could  not  claim  that  Muller  & 
Co.  were  thereby  estopped ;  for  the  statement  would  not  have 
been  made  to  him,  and  he  would  have  had  no  right  to  rely  on 
it.  One  who  has  obtained  knowledge  of  a  private  communica- 
tion, addressed  to  another  party,  cannot  claim  to  estop  the 
person  making  the  communication  by  statements  therein  con- 
tained. 

It  will  probably  be  found,  in  all  the  numerous  and  varied 
cases  of  estoppel  in  pais,  that  the  words  which  have  been 
held  to  estop  a  party  have  been  addressed  to  the  party  who 
claims  the  benefit  of  the  estoppel,  or  to  the  public. 

And  where  the  estoppel  has  been  the  result  not  of  words, 
but  of  silence,  there  the  party  estopped  has  had  knowledge  of 
some  transaction,  and  has  neglected  to  assert  rights  of  his, 
affected  thereby.  This  present  case  contains  neither  of  those 
elements. 

The  argument  of  the  defendants'  counsel  is  that  Muller  & 
Co.  were  merely  the  agents  of  Schepeler  &  Co. ;  that  the  cur- 
rency bills  were  the  legal  property  of  Schepeler  &  Co.  from 
the  beginning,  and  that  the  telegram  is  an  admission  of  that 
fact.  But  the  money  with  which  the  currency  bills  were 
purchased  was  money  raised  on  the  credit  of  Muller  &  Co. ; 
not  on  that  of  Schepeler  &  Co.  It  was  the  money  of  Muller 
&  Co.,  and  the  obligation  of  Schepeler  &  Co.  depended  upon 
their  receiving  the  property  purchased  with  those  funds.  Even, 
therefore,  admitting  the  agency  of  Muller  &  Co.,  they  had 
advanced  funds  for  the  purchase  of  these  bills,  and  they  justly 
had  a  right  to  reclaim  them,  when  the  failure  of  Schepeler  &  Co. 
had  taken  away  all  value  from  their  obligation  to  protect ;  and 
there  is  in  the  telegram  no  admission  contrary  to  this  right. 

The  right  of  stoppage  in  transitu  is  cut  off  by  the  transfer 
of  the  bill  of  lading  to  a  lonafide  purchaser.  (See  Perrinv. 
Dows,  16  K  Y.,  325  ;  Holbrook  v.  Vbse,  6  Bosw.,  76.)  But 
this  telegram  is  not  a  bill  of  lading.  It  has  none  of  the 
qualities  of  that  instrument.  (See  Bonito  v.  Mosquera,  2 
Bosw.,  at  438.)  It  was  not  negotiable  or  quasi  negotiable. 
The  transfer  of  the  telegram,  therefore,  did  not,  like  the 


480  CASES  IN  THE  SUPREME  COURT         [Nov., 

Mullet  v.  Pondir. 

transfer  of  a  bill  of  lading,  cut  off  Mailer's  rights.  Again, 
as  stated  by  the  learned  justice,  Pondir  did  not  part  with 
his  money  in  the  usual  course  of  business,  because  the  bills 
were  not  indorsed  and  delivered  to  him.  In  the  case  of 
Hedges  v.  Sealey  (9  Barb.,  214),  it  was  held  that  where  a 
note  negotiable,  but  not  indorsed,  is  transferred  to  another  by 
delivery  merely,  the  holder  of  the  note  is  a  mere  assignee' 
taking  only  the  rights  of  the  assignor.  This  doctrine  has 
been  recognized  since  in  other  cases.  (Gilbert  v.  Sharp,  2 
Lansing,  412.)  In  the  case  of  Russell  v.  Scudder  (42  Barb., 
31),  it  was  held  that  a  verbal  pledge  of  a  negotiable  instru- 
ment, without  a  delivery  or  an  absolute  transfer,  will  not 
make  the  pledgee  a  bona  fide  holder.  Now,  in  the  present 
case  there  was  no  indorsement  of  the  bills ;  next  there  was 
no  delivery  of  them ;  and  lastly  an  examination  of  the  letter 
of  Schepeler  &  Co.  will  show  that  there  was  not  even  a 
present  assignment.  There  was  an  agreement  that,  at  a 
future  time,  they  wou!4  hand  over  the  bills.  And  the  reli- 
ance of  Pondir  in  making  the  loan  was  therefore  on  the 
promise  of  Schepeler  &  Co. 

Pondir  did  not  purchase  the  bills.  He  claims  them  only 
as  collateral  security.  The  transaction,  therefore,  if  valid,  was 
a  pledge  of  the  bills.  ( White  v.  Platt,  5  Denio,  269  ;  Wheeler 
v.  Newbould,  16  N.  Y.,  392.)  "  Possession  must  uniformly 
accompany  a  pledge."  "  Goods  on  sea  may  be  passed  in  pledge 
by  a  transfer  of  the  muniments  of  title,  as  by  a  written  assign- 
ment of  the  bill  of  lading.  This  is  equivalent  to  actual  posses- 
sion, because  it  is  the  means  of  obtaining  possession."  (  Wilson 
v.  Little,  2  N".  Y.,  447.)  But  in  the  present  case  Pondir  never 
had  the  means  of  obtaining  possession  of  the  bills.  His  pos- 
session of  the  telegram,  with  the  letter  of  Schepeler  &  Co., 
gave  him  no  power  over  the  bills.  Schepeler  &  Co.  had 
agreed  that,  when  the  bills  arrived,  they  would  hand  them  to 
him.  It  was  contemplated,  therefore,  that  the  bills  should  go 
into  Schepeler  &  Co.'s  hands,  and  should  then  be  delivered  to 
him.  Between  these  two  parties  it  might  be  equitable  that 
Schepeler  &  Co.  should  perform  this  contract ;  just  as  it  would 


1872.1  OF  THE  STATE  OF  NEW  YORK.  481 

Muller  v.  Pondir. 

be  equitable  that  they  should  perform  every  contract.  But 
there  seems  to  have  been  nothing  to  prevent  Schepeler  &  Co., 
on  the  arrival  of  the  steamer,  from  taking  the  bills  and  using 
them  as  they  pleased ;  so  that,  even  as  against  Schepeler  & 
Co.,  Pondir  does  not  seem  to  have  obtained  possession  either 
of  the  securities,  or  of  a  "  muniment  of  title,"  which  would  ena- 
ble him  to  take  possession  of  them.  His  claim  is  the  promise 
of  Schepeler  &  Co.  to  hand  him  securities  at  a  future  day ;  and 
when  that  day  came  Schepeler  &  Co.  had  no  real  interest  in 
the  expected  securities.  Coming  to  the  conclusion,  there- 
fore, that,  as  against  Schepeler  &  Co.,  the  plaintiff  is  entitled 
to  the  moneys  in  dispute,  and  that  Pondir  stands  in  no  bfit- 
ter  position  than  Schepeler  &  Co.,  it  becomes  unnecessary  to 
examine  whether  or  not  the  debt  to  Pondir  was,  in  fact,  sub- 
sequently paid. 

It  follows  that  the  judgment  of  the  Special  Term  must  be 
reversed,  and  that  the  plaintiff  is  entitled  to  recover  the  pro- 
ceeds of  the  bills  now  on  deposit  subject  to  the  order  of  the 
court,  after  deducting  the  receiver's  commissions  and  expenses, 
and  that  the  plaintiff  recover  his  costs  against  Pondir. 

The  plaintiff  also  appealed  from  the  order  directing  the 
New  York  Life  Insurance  and  Trust  Company  to  pay  the 
receiver  five  per  cent  on  the  amount  in  their  hands,  and  also 
§600  expenses.  The  order  granting  these  ^commissions  and 
expenses  does  not  purport  to  have  been  granted  on  any  affi- 
davits or  on  the  hearing  or  motion  of  either  of  the  parties. 
No  affidavits  appear  in  the  case  showing  that  there  were  any 
expenses,  or  that  there  was  anything  peculiarly  difficult  in 
the  receiver's  duties.  By  a  previous  order  in  the  action,  made 
before  the  trial,  the  receiver  had  been  allowed  $550  for 
expenses  and  commissions,  besides  his  attorney's  costs  in  cer- 
tain actions.  So  far  as  may  be  judged  from  the  nature  of  the 
case,  the  receiver's  duties  must  have  consisted  in  receiving  the 
money  and  depositing  it  in  the  New  York  Life  Insurance 
and  Trust  Company  to  the  credit  of  this  action. 

Without  some  proof  of  the  amount  of  duty  performed,  it 
seems  reasonable  to  take  the  rate  fixed  for  executors.  The 

LANSING  — VOL.  VI.         61 


482  CASES  IN-  THE  SUPREME  COURT  [Dec., 

Tucker  t>.  Woolsey. 

order  as  to  the  receiver's  commissions  and  expenses  should, 
therefore,  be  reversed,  and  he  should  be  allowed  only  at  the 
rate  fixed  for  executors,  together  with  his  expenses,  to  be 
shown  by  affidavit,  and  to  be  adjusted  by  the  Special  Term 
on  notice  to  the  parties. 
Judgment  reversed. 


JAMES  "W.  TUCKER  and  others,  Appellants,  v.    EDWAKD  J. 
,  WOOLSEY  and  others,  Respondents. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  DECEMBER,  1872.) 

An  agent  sent  from  a  foreign  country  with  goods,  in  quantities  for  exhi- 
bition and  sale,  who  produces  letters  from  his  principal  to  a  corres- 
pondent of  the  latter  at  the  place  to  which  he  is  sent,  asking  assistance 
and  advice  for  him  in  the  prosecution  of  his  business,  has  such  apparent 
authority  to  hire  suitable  premises  for  storage  of  the  goods  as  will  justify 
the  correspondent  in  renting  such  premises  to  him  for  the  purpose,  on 
the  principal's  account. 

But  no  authority  can  be  implied  from  these  facts,  which  will  authorize  the 
advancement  of  money  by  the  correspondent  to  the  agent,  on  account 
of  the  principal,  even  after  an  advance  made  by  him  for  duties  on  the 
goods  has  been  approved. 

Parol  evidence  is  admissible  of  the  contents  of  a  letter,  it  appearing  that 
the  person  in  whose  possession  it  is  is  out  of  the  country. 

THE  action  was  brought  to  recover  a  balance  of  accounts 
claimed  to  be  due  from  defendants  to  plaintiff.  An  account- 
in  <r  was  had  before  the  referee,  arid  he  holding  that  the 

o  *  o 

defendants  were  not  indebted  in  any  sum  upon  such  account- 
ing reported  dismissing  the  complaint  with  costs.  -"  From  the 
judgment  entered  upon  this  report  the  plaintiff  appealed. 
The  facts  relating  to  the  questions  raised  upon  the  account- 
ing sufficiently  appear  in  the  opinion. 

Francis  C.  Barlow,  for  the  appellants. 
William  F.  Shepard,  for  the  respondents. 
Present — INGRAHAM,  P.  J. ;  LEARNED  AND  LEONARD,  JJ 


1872.]  OF  THE  STATE  OP  NEW  YORK.  483 

Tucker  t>.  Woolsey. 

INGRAHAM,  P.  J.  The  appeal  in  this  case  is  from  a  judg- 
ment before  a  referee,  and  applies  to  some  items  of  an  account 
which  must  be  separately  considered. 

The  plaintiffs  were  merchants  in  Paris,  and  had  accounts 
and  dealings  with  the  defendants  in  New  York.  They  sent 
an  agent  to  New  York  to  look  for  orders  in  their  business. 
They  sent  with  him  seven  large  trunks  filled  with  goods,  and 
gave  him  a  letter  of  introduction  to  the  defendants,  asking 
for  him  their  kind  services  as  regards  advice.  Another  letter 
was  afterward  sent,  saying  to  defendants,  "  any  assistance  or 
advice  you  may  render  him  in  the  prosecution  of  his  business, 
will  be  appreciated."  Two  letters  were  afterward  written, 
each  asking  defendants  to  advance  the  agent  fifty  dollars.  On 
his  arrival  here,  the  agent  called  on  defendants.  The  defend- 
ants advanced  money  to  pay  the  duties.  This  was  approved 
of  by  the  plaintiffs.  The  defendants  then,  at  the  request  of 
the  agent,  rented  him  an  office  in  which  to  store  and  exhibit 
his  goods.  The  plaintiffs  deny  the  authority  of  the  agent  to 
hire.  The  referee  allowed  this  item.  There  can  be  no  doubt 
that  the  principal  is  liable  for  the  act  of  his  agent,  so  long  as 
he  acts  within  the  apparent  scope  of  his  authority.  The 
agent  came  with  seven  large  trunks  filled  with  goods.  They 
were  for  exhibition  and  sale.  Some  place  was  necessary, 
either  by  renting  a  room  for  the  purpose  or  by  hiring  storage. 
When  the  plaintiffs  asked  of  defendants  assistance  and  advice 
in  the  prosecution  of  his  business,  they  gave  them  reason  to 
suppose  that  such  assistance  and  advice  was  in  regard  to  the 
care  and  disposition  of  the  property  he  had  to  sell,  and  fur- 
nishes ample  grounds  for  supposing  that  the  agent  had 
authority  to  provide  a  place  in  which  the  goods  could  be 
stored  and  exhibited.  It  was  a  matter  absolutely  necessary 
for  the  care  of  the  property  of  the  plaintiffs,  and  fully  justi- 
fied the  finding  of  the  referee  as  to  the  item  for  rent. 

Another  item  objected  to  on  this  appeal  is  as  to  moneys 
advanced  to  the  agent  beyond  the  $100  authorized  in  the  two 
letters  of  the  plaintiffs.  It  is  clear  that  no  authority  was 
given  to  advance  money  to  the  agent  for  his  expenses,  and  if 


484  CASES  IN  THE  SUPREME  COURT          [Dee. 

Tucker  v.  Woolsey. 

such  items  appeared  in  the  accounts  they  should  have  been 
rejected.  The  agent,  as  he  sold  the  plaintiffs'  goods> 
deposited  the  money  with  defendants,  because  he  had  no  bank 
account.  As  he  would  want  to  use  it,  he  reserved  the  right 
to  draw  it  as  he  had  occasion.  There  was  no  direction  given 
that  this  money  should  be  paid  by  the  agent  to  the  defend- 
ants. They  were  justified  in  taking  it  as  a  special  deposit, 
and  in  paying  back  that  deposit  to  him  as  he  from  time  to 
time  required.  The  defendants  were  under  no  obligation  to 
hold  it  for  the  plaintiffs,  and  to  the  amount  of  moneys  so 
received  they  are  entitled  to  be  credited  for  an  equal  amount 
refunded.  For  any  advances  made  beyond  such  deposits,  and 
the  sums  specially  ordered,  there  was  no  authority  for  the 
advance,  and  the  same  should  be  disallowed. 

The  very  fact  that  the  plaintiff  did  not  authorize  the 
advance  of  moneys  to  the  agent  for  duties  and  expenses,  leaves 
it  to  be  supposed  that  the  intent  was  that  he  was  to  use  the 
moneys  received  by  him  for  the  sale  of  goods,  as  much  as  was 
necessary  for  his  expenses,  and  justified  the  repayment  by  the 
defendants  to  the  agent  of  the  moneys  he  so  deposited  with 
them. 

The  remaining  item  is  the  money  advanced  for  a  passage 
ticket  to  return  home.  The  testimony  shows  that  Dreux 
produced  to  defendants  a  letter  from  the  plaintiffs,  and  which 
was  read  by  Woolsey,  and  which  stated  that  the  defendants 
should  furnish  him  with  a  return  ticket.  The  objection  to 
this  evidence  was  not  well  taken.  It  was  in  proof  that  Dreux 
kept  the  letter,  and  that  he  was  out  of  the  country.  This 
was  sufficient  evidence  to  warrant  parol  proof  of  its  contents. 
The  denial  by  Andrews  of  having  written  such  a  letter,  made 
it  a  question  of  fact  for  the  referee,  with  which  we  cannot 
interfere. 

Our  conclusion,  therefore,  is  that  no  error  was  committed 
by  the  referee,  except  in  allowing  for  moneys  advanced 
beyond  the  amount  deposited  with  the  defendants,  and  such 
excess  should  be  deducted  from  the  amount  allowed  to  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  485 

Cooper  c.  Felter. 

defendants,  aiid  the  plaintiffs  should  have  judgment  for  that 
sum,  with  interest. 

If  the  defendants  so  consent,  and  file  a  stipulation  that 
plaintiffs  may  have  judgment  for  the  amount  of  such  excess 
and  interest,  the  present  judgment  may  be  vacated  and  such 
judgment  maybe  entered;  if  not,  a  new  trial  is  ordered, 
costs  to  abide  event 

Ordered  accordingly. 


ANN  ELIZA  COOPER,  Executrix,  &c.,  Appellant,  v.  HENEY  D. 
FELTEK  and  another,  [Respondents. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

If,  upon  the  presentation  of  a  claim,  an  executor  does  not  admit  or  reject 

it,  he  must  be  regarded  as  disputing  it 
A  denial  of  allegations,  in  a  petition  to  the  surrogate,  cannot  be  regarded 

as  allegations  of  new  matter. 
It  will  not  be  presumed  that  a  claim,  against  the  testator  for  rent,  is  for  th« 

benefit  of  his  estate ;  and  where  no  proof  of  actual  benefit  is  made,  or 

stated,  in  the  petition  upon  which  the  surrogate  assumes  to  hear  the 

claim,  it  is  error  if  he  adjudge  it  a  preferred  claim  under  the  statute. 
Section  6  of  the  act  of  1870  (chapter  359)  gives  no  authority  to  surrogates 

to  try  the  claims  of  creditors  which  are  disputed  by  an  executor. 
That  section  (§  6)  refers  to  accounts  of  executors,   or  administrators, 

rendered  to  the  surrogate,  and  was  not  intended  to  deprive  them  of  the 

right  of  trial  of  claims,  disputed  by  them,  by  jury. 

APPEAL  from  a  decree  of  the  surrogate  of  the  county  of 
New  York.  The  facts  are  stated  in  the  opinion  of  the  court. 

Present — INGBAHAM,  P.  J.;  BEADY  and  LEONAED,  JJ. 

LEONAED,  J.  The  surrogate  of  New  York  issued  an  order 
in  the  nature  of  a  summons,  bearing  date  the  17th  of  Febru- 
ry,  1 872,  requiring  Mrs.  Cooper,  the  executrix  of  the  last  will 
of  Benjamin  F.  Cooper,  to  personally  appear  before  the  said 
surrogate  on  the  26th  of  February,  and  render  an  account  of 
her  proceedings  as  such  executrix,  and  show  cause  why  the 
surrogate  should  not  decree  payment  of  the  debt  of  Henry  J). 


486  CASES  IX  THE  SUPREME  COURT         [Nor., 

Cooper  v.  Felter. 

Felter  against  Benjamin  F.  Cooper,  deceased,  upon  a  lease  of 
premises  at  560  Broadway,  between  Felter  and  said  Benjamin, 
at  the  rate  of  $4:50,  quarterly,  being  for  six  months'  rent  from 
August  1st,  1871,  to  February  1st,  1872.  And  a  further  sim- 
ilar order  was  afterward  issued  to  recover  for  the  next  ensu- 
ing quarter,  up  to  May  1,  1872,  when  the  lease  terminated. 
•  The  summons  was  granted  upon  the  petition  of  Felter,  set- 
ting forth  the  same  facts,  substantially,  as  are  stated  in  the 
said  order  or  summons.  The  petition  also  stated  that  the  said 
debt  was  "entitled  to  a  preference  in  payment  under  the  sta- 
tute, it  being  for  the  interest  and  benefit  of  the  said  estate 
that  the  same  be  paid."  Also,  that  letters  testamentary  had 
been  granted  to  Mrs.  Cooper  on  the  14th  of  August,  1871, 
and  that  the  petitioner,  Mr.  Felter,  had  demanded  payment 
of  the  said  rent  of  the  said  executrix,  and  although  she  did 
not  dispute  or  reject  it,  that  she  had  neglected  to  pay  it. 

On  the  26th  of  February,  1872,  Mrs.  Cooper  attended  before 
the  surrogate  and  interposed  an  answer,  denying,  among  other 
matters,  that  the  said  Felter  was  a  preferred  creditor,  or  that  he 
had  made  any  proper  demand,  or  that  there  was  any  credible 
evidence  of  any  lease  between  Mr.  Felter  and  the  deceased. 
She  denied  that  the  deceased  was  of  sound  mind  at  the  time  of 
the  alleged  leasing,  or  that  the  premises  were  of  the  rental  value 
claimed;  she  denied  that  she  had  knowledge  or  information 
sufficient  to  form  a  belief  of  the  truth  of  the  averments  of  the 
petition,  and  therefore  denied  that  any  valid  or  binding  agree- 
ment had  been  made  by  the  decedent ;  denied  that  it  would 
be  a  benefit  to  the  estate  to  give  preference  to  said  claim,  and 
she  submitted  that  she  should  not  be  required  to  consider  the 
claim  until  properly  presented  by  Felter  as  a  creditor. 

The  surrogate  heard  the  proof  offered  by  the  said  claimant 
on  the  7th  of  March,  1872.  The  renting  of  the  premises  in 
July,  1871,  for  nine  months  from  August  1,  at  the  rate  of 
$1,800  per  annum,  payable  quarterly ;  the  possession  of  the 
deceased  for  a  few  days  before  his  death  in  July,  when  he  was 
engaged  in  putting  the  premises  in  order  for  occupation ;  a 
demand  for  the  rent  in  September,  1871,  to  which  the  execu- 


J3V2.1  OF  THE  STATE  OF  NEW  YORK.  487 

Cooper  v,  Felter. 

trix  replied  that  it  was  in  the  hands  of  her  lawyer,  was  proven 
before  the  surrogate ;  but  no  affidavit  or  other  proof  of  the 
claim  was  proven  to  have  been  submitted  to  the  executrix 
prior  to  the  commencement  of  the  said  proceeding. 

Substantially  the  same  proceedings  were  instituted  in  May 
for  the  last  quarter's  rent,  and  a  like  petition  and  answer 
were  tiled,  but  no  further  evidence  appears  to  have  been 
taken.  On  the  23d  of  May,  1872,  the  surrogate  decreed  that 
the  said  executrix  pay  the  said  demand,  with  interest,  amount- 
ing to  $1,378.28,  and  an  allowance  to  the  proctor  for  said  Fel- 
ter of  $75,  "  for  and  in  lieu  of  all  costs."  The  executrix 
appealed  from  this  decree  to  the  General  Term  of  the  Supreme 
Court.  . 

It  must  be  conceded  on  the  pleadings  that  the  claim  is  a 
disputed  one.  It  was  held  by  the  Court  of  Appeals  in  Tucker 
v.  Tucker  (4  Keyes,  149),  that  when  a  demand  was  pre- 
sented to  an  executor  or  administrator  and  not  rejected  or 
admitted,  and  no  offer  made  to  refer,  it  must  be  regarded  as 
a  disputed  demand.  That  the  executor  or  administrator  could 
not  be  permitted  to  occupy  an  equivocal  position.  If  not 
admitted,  the  claim  was  to  be  considered  as  having  been 
rejected. 

It  was  also  decided  in  the  same  case  that  the  surrogate  had 
no  jurisdiction  to  try  or  determine  any  disputed  claim — not 
even  by  the  consent  of  parties.  Several  cases  previously 
decided  in  the  Supreme  Court,  to  the  same  effect,  are  cited 
with  approval. 

There  was  a  denial  by  Mrs.  Cooper  as  to  the  preference 
claimed  ;  a  denial  of  any  demand ;  a  denial  of  any  valid  lease; 
and  a  denial  that  the  preference  claimed  would  benefit  the 
estate.  There  are  other  denials,  but  as  there  are  no  corres- 
ponding averments  in  the  petition,  the  denials  cannot  pro- 
perly be  regarded  as  formal  allegations  of  new  matter. 

The  answer  to  the  supplemental  petition  is  in  sufficiently 
proper  form  to  constitute  an  allegation  of  the  insanity  of  the 
decedent ;  and  the  denial  of  the  lease  and  of  the  demand  foi 
payment  are  also  duly  and  properly  stated. 


488  CASES  IN  THE  SUPREME  COURT          [Nov., 

Cooper  v.  Felter. 

The  evidence  entirety  fails  to  prove  a  demand  of  payment 
after  any  rent  became  due.  The  demand  was  in  September, 
according  to  the  evidence,  but  no  rent  was  due  until  Novem- 
ber. The  executrix  offered  no  evidence.  No  evidence  was 
offered  that  any  adveitisement  had  been  made  for  the  produc- 
tion of  claims,  and  the  estate  was  not  for  that  reason  prepared 
for  a  final  accounting. 

Indeed,  it  is  not  claimed  that  the  matter  was  heard  upon  a 
final  accounting.  The  right  to  be  paid  is  put  upon  the  ground 
that  the  claim  is  entitled  to  a  preference.  It  is  claimed  that 
it  is  a  preferred  demand  because  it  is  for  rent.  The  statute 
requires  that  the  payment  of  rent,  as  a  preferred  demand, 
must  be  made  to  appear  to  be  for  the  benefit  of  the  estate. 
(3  R.  S.,  p.  174,  5th  ed.,  §  34.)  No  proof  was  offered,  and 
not  a  fact  was  stated  in  th*  petition  tending  to  prove  that 
the  estate  would  be  benefited  by  the  payment.  The  forfeit- 
ure of  a  valuable  lease,  or  the  necessity  of  storing  merchan- 
dise belonging  to  the  estate,  if  proven,  might  tend  to  show 
that  the  payment  would  be  beneficial.  But  no  such  allega- 
tion or  proof,  nor  any  equivalent  proof,  was  offered. 

It  is  claimed  that  jurisdiction  has  been  conferred  on  the 
surrogate  to  hear  and  determine  disputed  claims  by  an  act  of 
the  Legislature,  passed  in  1870.  (Sess.  L.,  chap.  359,  vol.  1, 
page  826.)  Jurisdiction  is  given  by  section  six  of  that  chap- 
ter to  appoint  a  referee,  in  any  accounting  or  proceeding  in  a 
Surrogate's  Court,  in  the  city  of  New  York,  to  take  testimony, 
to  examine  accounts  rendered  to  said  surrogate,  to  hear  and 
determine  disputed  claims  and  other  matters  relating  to  said 
accounts,  and  to  make  report  thereon,  subject  to  the  confirm- 
ation of  the  surrogate. 

There  was  no  account  or  accounting  attempted  before  the 
•  surrogate  in  this  case.  An  accounting  is  mentioned  in  the 
order  or  summons  to  appear,  but  the  evidence  is  wanting  to 
prove  that  an  accounting  by  the  executor  was  intended  as  any 
part  of  the  proceeding,  and  nothing  was  proven  to  justify  any 
preference  over  other  claims  against  the  estate. 

But  section  six  refers  to  disputed  claims  and  other  matters 


1872.]  OF  THE  STATE  OF  NEW  YORK.  489 


Cooper  9.  Felter. 


relating  to  accounts  rendered  to  the  surrogate.  Such  accounts 
are  the  accounts  of  the  executor  or  administrator,  rendered  to 
the  surrogate,  and  not  the  accounts  of  creditors  of  the  estate. 
The  Revised  Statutes  have  provided  the  mode  of  adjusting 
and  deciding  disputed  claims  of  creditors  against  the  estate  of 
deceased  persons.  The  creditor  may  be  required  by  the 
executor  to  furnish  vouchers  for  his  claim,  or  to  make  affida- 
vit that  it  is  justly  due.  (3  R.  S.,  5th  ed.,  p.  175,  §  40.) 

If  the  executor  duubt  the  justice  of  any  claim  presented, 
he  may  agree  with  the  claimant  to  refer  it.  (§  41.) 

If  the  creditor  exhibit  a  claim  which  the  executor  disputes 
or  rejects,  and  does  not  offer  to  refer,  the  creditor  shall  within 
six  months,  if  the  claim  is  due,  commence  a  suit  for  the  recov- 
ery thereof  or  be  forever  barred.  (§  43,  p.  176.) 

It  was  never  intended  by  any  statute  to  deprive  the  execu- 
tor, or  the  creditor,  of  the  common-law  remedies,  or  defences 
to  an  action,  or  of  a  trial  by  jury,  in  regard  to  a  disputed 
claim  against  the  estate  of  a  deceased  person.  The  right  of 
trial  by  jury  cannot  be  taken  away  by  statute,  except  in  the 
case  of  a  claim  involving  a  long  account.  Such  a  claim  must, 
also,  be  recovered  by  an  action  at  law,  in  case  the  executor  or 
administrator  disputes  it,  and  will  not  agree  to  refer  it.  A  sta- 
tute cannot  lawiullj'  deprive  an  executor  or  administrator  of 
these  rights,  nor  confer  such  jurisdiction  upon  a  surrogate  as 
•would  amount  to  a  denial  of  these  constitutional  rights. 

The  allowance  to  the  proctor  falls,  of  course,  with  the  judg- 
ment. The  ninth  section  of  chap.  359  authorizes  the  surro- 
gate to  make  allowances  in  lieu  of  costs,  to  counsel,  in  pro- 
ceedings before  him,  in  the  manner  prescribed  by  the  Code  of 
Procedure  in  civil  actions. 

The  order  must  be  reversed,  with  costs. 

LAPSING — VOL.  VI.       62 


490  CASES  IX  THE  SUPREME  COURT         [Nov., 

.        Hagen  v.  The  Bowery  National  Bank. 


JULIUS  H.  HAGEN,  Respondent,  v.  THE  BOWEKY  NATIONAL 
BANK,  Appellant. 

(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

A  bank  is  liable  to  a  bona  fide  holder  in  the  ordinary  course  of  business 
upon  a  forged  check  purporting  to  be  drawn  upon  it,  payable  to  order, 
and  which  it  has  certified. 

The  liability  to  such  holder  attaches  upon  the  certification,  and  it  is 
immaterial  whether  the  indorsement  of  the  check  is  that  of  the  payee 
named,  or  whether  a  fictitious  person  is  named  as  payee. 

An  advertisement  of  a  forged  note  cannot  affect  a  bona  fide  holder  thereof 
unless  brought  home  to  him. 

THIS  was  an  appeal  by  the  defendant  from  a  judgment  for 
the  plaintiff  eiitered  upon  a  referee's  report. 

The  action  was  to  recover  upon  the  acceptance  or  certifica- 
tion of  a  check,  and  the  findings  made  by  the  referee  were  as 
follows : 

"  1.  That  on  the  26th  day  of  March,  1868,  a  person  repre- 
senting himself  to  be  P.  Donovan  presented  to  the  defend- 
ants a  check  for  $2,100,  payable  to  P.  Donovan  or  order,  on 
the  Bowery  National  Bank,  purporting  to  be  drawn  by  one 
John  Sniffen,  who  was  then  a  depositor  with  said  bank. 

"  2.  That  the  defendants,  upon  presentation  of  the  check 
to  them,  certified  said  check  to  be  good,  as  alleged  in  the 
complaint,  in  the  usual  way  of  such  certifications  by  the  pay- 
ing teller  stamping  the  same  upon  its  face,  and  writing  his 
name  thereon. 

"3.  That  shortly  after  said  certification,  the  defendants 
learned  from  John  Sniffen,  the  depositor,  by  whom  said  check 
purported  to  be  drawn,  that  said  check  was  never  drawn  by 
him,  and  the  defendants  thereupon  inserted  in  four  daily 
morning  newspapers,  which  were  issued  on  the  morning  of 
the  next  day,  March  27th,  1868,  a  notice  cautioning  the  pub- 
lic from  negotiating  said  check. 

"  4.  That  on  the  said  26th  day  of  March  a  person  repre- 
senting himself  to  be  P.  Donovan  presented  said  check  to  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  491 

Hagen  v.  The  Bowery  National  Bank. 

paying  teller  of  the  Sixth  National  Bank  and  asked  the  said 
bank  to  pay  the  same. 

"  5.  That  previous  to  this  day,  the  person  so  presenting  said 
check  had  been  introduced  by  a  customer  of  the  bank  to  said 
Sixth  National  Bank  as  P.  Donovan,  and  in  that  name  had 
opened  an  account  in  said  Sixth  National  Bank,  and  in  that 
name  had  deposited  money  and  drawn  checks  upon  it. 

"  6.  That  the  paying  teller  of  said  Sixth  National  Bank, 
upon  the  presentation  of  said  check  so  certified,  refused  to 
pay  the  same  ;  but  upon  the  same  being  indorsed  by  the  per- 
son presenting  the  same  with  the  name  of  P.  Donovan,  the 
payee  therein  named,  the  paying  teller  certified  the  indorse- 
ment to  be  correct. 

"  7.  That  said  person  thereupon  left  the  bank,  and  on  the 
26th  day  of  March,  1868,  took  said  check  to  the  plaintiff,  who 
was  a  dealer  in  gold  and  silver  coin  and  bullion,  doing  busi- 
ness at  No.  1  Wall  street,  in  the  city  of  New  York,  and 
offered  to  purchase  gold  coin  with  said  check. 

"  8.  That  this  person  being  a  stranger  to  the  plaintiff,  and 
it  then  being  after  bank  hours,  the  plaintiff  sent  said  check 
to  a  bank  near  his  office  to  ascertain  if  the  certification  upon 
its  face  of  the  Bowery  National  Bank  was  genuine,  and  also 
the  certificate  of  the  Sixth  National  Bank  to  its  indorsement. 
That  the  paying  teller  of  the  bank  had  left  for  the  day,  and 
the  plaintiff  was  unable  to  and  did  not  learn  concerning  the 
genuineness  of  said  certifications.  That  thereupon  the  plain- 
tiff refused  to  deliver  the  gold  and  take  the  check  until  he 
could  verify  these  certifications,  and  requested  the  holder  of 
the  check  to  call  the  next  day  during  banking  hours. 

"  9.  That  the  said  person  called  the  next  morning,  the  27th 
of  March,  1868,  and  again  presented  said  check.  That  there- 
upon the  plaintiff  sent  said  check  to  a  bank  in  the  neighbor- 
hood, and  learned  that  the  certifications  thereon  were  genuine. 

"  10.  That  thereupon  the  plaintiff  took  the  check  and  deliv- 
ered to  the  person  presenting  it  its  full  equivalent  in  gold. 

"11.  That  shortly  afterward  (this  being  on  the  27th  of 
March,  1868)  the  plaintiff  sent  said  checks  to  the  banking 


492  CASES  IN  THE  SUPREME  COURT           [Nov.. 

Hagen  t>.  The  Bowery  National  Bank. 

house  of  the  defendants  at  the  comer  of  Canal  street  and  the 
Bowery,  and  demanded  payment,  and  was  then  for  the  first 
time  informed  that  said  check  was  a  forgery,  and  payment  of 
said  check  was  refused. 

"  12.  That  the  name  of  John  Sniffen,  as  signed  to  the  said 
check  was  in  fact  a  forgery. 

"  13.  That  the  plaintiff  took  said  check  without  notice  of 
the  forgery  of  the  drawer's  name,  and  gave  value  for  the  same 
in  good  faith,  and  in  the  course  of  his  business. 

"  14.  That  the  plaintiff  has  never  been  paid  by  said  defend- 
ants the  amount  of  said  check. 

"  15.  That  the  interest  thereon  from  the  date  of  the  pre- 
sentation thereof  to  the  date  of  this  report  is  $470.33. 

"  And  I  report  as  a  conclusion  of  law,  that  the  plaintiff  is 
entitled  to  judgment  against  the  defendants  for  $2,570.33  and 
the  costs  of  this  action." 

James  R.  Marvin,  for  the  appellant. 
Franklin  Brown,  for  the  respondent. 
Present — LEONARD  and  GILBERT,  JJ. 

x 

By  the  Court — GILBERT,  J.  The  defendant  certified  the 
check  in  question  as  being  good.  The  plaintiff  took  the 
check  in  the  ordinary  course  of  business  for  value  and  in  good 
faith.  There  is  nothing  shown  to  impeach  his  title.  The 
check  turned  out  to  be  a  forgery.  It  cannot  be  questioned 
that  the  bank  is  liable  to  make  good  its  certificate  by  paying 
the  check.  (Farmers'  and  Merchants'  Bank  v.  Butchers' 
and  Drovers'  Bank,  25  id.,  146 ;  Price  v.  Neul,  3  Burr., 
1354 ;  Commercial,  dec.,  Bank  v.  First  National  Bank,  30 
Md.,  11.)  The  principle  on  which  the  liability  rests  is  stated 
by  HOLT,  Ch.  J.,  in  Hern  v.  Nichols  (1  Salk.,  298),  namely, 
that  "  seeing  somebody  must  be  a  loser  by  this  deceit,  it  is 
more  reason  he  that  confides  in  the  deceiver  should  be  a  loser 
than  a  stranger,"  and  has  become  an  established  rule  of  law 
in  cases  identical  with  this. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  493 

Herbert  t>.  Smith. 

Whether  the  indorsement  purporting  to  be  that  of  the  payee 
named  in  the  check  was  genuine  or  not,  or  whether  the  per- 
son so  named  was  a  fictitious  person,  imperfectly  appears. 
But  it  is  immaterial  whether  it  was  one  or  the  other.  There 
can  be  no  real  payee  of  a  forged  instrument.  As  between  the 
plaintiff  and  the  bank  the  liability  of  the  latter  attached  upon 
the  check  being  certified,  and  as  it  is  impossible  to  make  title 
to  money  payable  upon  a  forged  check  through  an  indorse- 
ment thereof,  proof  of  the  genuineness  of  the  indorsement  is 
unnecessary  for  that  purpose.  The  evidence  shows  that  the 
person  from  whom  the  plaintiff  received  the  check  went  by 
the  name  indorsed  thereon,  and  that  the  indorsement  was 
made  by  him.  This  is  quite  sufficient  to  protect  the  plaintiff 
against  any  imputation  of  negligence  or  bad  faith  in  taking 
the  check. 

The  advertisement  of  the  forgery  not  having  been  brought 
home  to  the  plaintiff,  can  have  no  effect  whatever  upon  his 
right  to  recover.  (Raphael  v.  Bank  of  England,  170.  B., 
161.)  For  the  reasons  stated,  we  are  of  opinion  that  the  judg- 
ment should  be  affirmed  with  costs. 

Judgment  affirmed. 


ELLA  S.  HERBEKT  and  another  v.  SUSAN  P.  SMITH  and  others. 
(GENERAL  TERM,  FIRST  DEPARTMENT,  NOVEMBER,  1872.) 

A  misunderstanding  or  mistake,  in  regard  to  matters  of  agreement,  upon 
argument  at  Special  Term  is  not  a  subject  for  review  on  appeal. 

Where  the  fee  simple,  and  every  equitable  title  to  lands,  was  vested  in  the 
parties  to  an  action  for  its  partition, — Held,  that  the  action  would  lie. 

The  vendee  of  lands  under  a  contract  for  purchase  at  a  large  price,  died, 
after  payment  of  a  portion  of  the  purchase-money,  leaving  a  still  greater 
balance  unpaid ;  his  administrators  advanced  their  own  funds,  partly, 
with  those  of  the  intestate,  and  took  a  deed  to  themselves  individually, 
which  they  claimed  to  hold  only  as  security  for  their  advances.  Held, 
that  an  action  for  partition,  between  all  the  legal  and  equitable  ownera 
of  the  lands,  could  be  maintained. 


494  CASES  IN  THE  SUPREME  COURT         [Nov., 


Herbert  ®.  Smith. 


And  it  seems  equity  would  entertain  an  action  upon  a  complaint  setting 
forth  the  facts,  and  to  which  all  interested  were  parties  and  decree  a 
sale,  in  the  nature  of  a  partition,  and  a  division  of  the  proceeds. 

An  omission,  of  proof  of  the  sending  by  mail  a  copy  of  the  summons  and 
complaint,  on  service  by  publication,  may  be  supplied  by  order  direct- 
ing the  filing  of  such  proof  nunc  pro  tune,  made  after  decree. 

The  Code  requires  publication  of  a  summons  to  be  made  continuously  in 
each  paper,  but  not  concurrently. 

The  service  is  not  complete  until  forty-two  days  after  the  first  insertion  in. 
the  paper  last  making  publication. . 

Questions  in  a  partition  suit,  respecting  the  suitableness  of  the  guardians 
ad  lilem  appointed  by  the  court,  their  attention  to  the  interests  of  the 
infants,  the  money  advanced  by  administrators  on  behalf  of  the  infants, 
the  amount  of  the  estate,  &c.,  do  not  affect  the  jurisdiction  of  the  court 
or  regularity  of  the  sale,  and  are  not  grounds  upon  which  purchasers  of 
the  lands  can  be  relieved  from  their  purchase. 

Where  the  referee,  to  make  a  partition  sale,  has  not  followed  the  decree 
in  respect  to  the  terms  of  sale,  the  court  may,  upon  proof  that  the  devia- 
tion was  not  prejudicial  to  the  infants,  but  desirable  for  their  interests, 
direct  a  modification  of  the  decree  nunc  pro  tune, 

A  question,  of  such  deviation  from  the  decree,  being  as  to  regularity  of 
practice  only,  and  not  one  on  which  the  court  would  have  intervened 
after  the  sale,  is  not  one  with  which  the  purchaser  has  any  concern. 

Where  the  referee  adjourns  the  sale  in  partition,  after  sales  of  part  of  the 
premises,  to  a  particular  time,  and  upon  confirmation  of  the  sales  made 
the  court  directs  the  sale  of  the  remaining  premises  to  stand  over  to  a 
future  time,  the  adjournment  of  the  referee  is  nullified,  and  a  sale  at  a 
later  day  than  the  day  appointed  by  adjournment  made  upon  publica- 
tion of  notice  for  six  weeks  as  directed  by  the  decree,  is  regular. 

An  allegation  by  the  purchaser,  that  mortgages  exist  upon  the  property 
purchased  which  the  referee  was  not  prepared  to  satisfy  at  the  time 
for  the  delivery  of  the  deed,  is  met  by  proof  that  the  amount  to  be  paid 
by  the  purchasers  was  sufficient  to  extinguish  the  mortgages,  and  that 
the  holders  were  at  hand  to  receive  the  money  and  satisfy  their  liens. 

A  suggestion  that  title  is  defective  because  it  came  through  a  grantee  who 
had  purchased  in  his  own  right,  forty  years  since,  while  he  stood  in  the 
relation  of  trustee  of  the  property,  where  no  evidence  is  offered  to  show 
that  the  trustee  did  not  account  to  his  cestui  que  trust,  the  property  hav- 
ing been  often  since  transferred  by  his  and  subsequent  grantees,  is  not 
material. 

THIS  was  an  appeal  from  an  order  refusing  to  relieve  a 
purchaser  at  partition  sale  from  his  purchase.  The  facts  are 
stated  in  the  opinion. 

Present — BRADY  and  LEONARD,  JJ. 


1872.1  OF  THE  STATE  OF  NEW  YORK.  495 

Herbert  «.  Smith. 

LEONARD,  J.  This  is  an  appeal  from  an  order  denying  a 
motion,  on  the  part  of  Amos  R.  Eno  and  others,  to  be  relieved 
from  their  respective  bids  and  contracts  to  purchase  certain 
lots  in  the  city  of  New  York  mentioned  in  a  judgment  of 
partition  and  sale  of  the  said  lots,  rendered  by  this  court  in 
the  above  entitled  action. 

The  objections  set  forth  in  the  petition  for  relief  are  quite 
numerous  and  have  all  been  urged  for  our  consideration, 
except  the  fifteenth,  by  some  of  the  petitioners. 

A  preliminary  motion  was  pressed  by  the  appellants  upon 
affidavits  presented  at  the  General  Term,  in  the  first  instance, 
tending  to  show  that  some  understanding  had  been  made 
between  the  judge  who  heard  the  motion  at  Special  Term 
and  the  different  counsel,  that  in  a  certain  event  a  reference 
should  be  granted  to  take  proof  on  certain  of  the  objections 
mentioned  in  the  petition,  and  that  the  judge  had  disregarded 
this  agreement  or  understanding,  and  decided  the  whole 
motion  without  any  reference  and  without  the  hearing  of 
counsel  for  the  petitioners  on  the  points  involved  in  those 
objections. 

The  answer  to  this  objection  is  obvious.  The  facts  were 
sufficiently  before  the  court  to  enable  the  judge  properly  to 
comprehend  the  points  raised  by  the  petitioners. 

The  appellants  have  also  mistaken  the  correct  method  for 
obtaining  relief,  if  there  was,  in  fact,  any  mistake  or  mis- 
understanding on  the  part  of  the  judge  at  Special  Term. 
The  fault,  if  any,  ought  to  have  been  corrected  by  an  appli- 
cation for  a  rehearing  of  the  motion  at  Special  Term  on  affi- 
davits clearly  pointing  out  the  mistake  or  oversight  which 
had  occurred.  No  such  application  was  made.  It  is  not  the 
province  of  the  General  Term  to  correct  mistakes  of  the 
nature  complained  of,  as  it  is  not  a  question  of  appellate 
jurisdiction. 

1.  The  first  objection  of  the  petitioners  is  that  the  parties 
had  not  a  title  in  fee  simple,  and  hence,  that  they  had  not  a 
case  authorizing  a  partition  of  lands. 

There  was  a  contract  of  purchase  on  the  10th  of  February, 


496  CASES  IN  THE  SUPREME  COURT      [Nov., 

Herbert  v.  Smith. 

1869,  made  by  "W.  M.  Smith  with  the  vendor  and  owner, 
upon  which  he  paid  $20,000,  and  agreed  to  pay  the  further 
sum  of  $35,000  on  the  10th  of  May  ensuing,  when  the  land 
was  to  be  conveyed  to  him,  and  he  was  to  execute  to  the 
vendor  mortgages  on  the  premises  for  the  residue  of  the  pur- 
chase-money. W.  M.  Smith,  the  purchaser,  died  intestate  on 
the  22d  of  February,  1869,  leaving  a  wido\v,  Susan  P.  Smith, 
and  one  adult  child,  the  plaintiff  in  this  action,  and  six  minor 
children.  In  March  following  the  widow  and  Mr.  Yernon  K. 
Stevenson  were  appointed  administrators  of  the  estate  of  the 
deceased.  They  afterward  fulfilled  the  contract,  on  the  part 
of  their  intestate,  paying  about  $7,000  of  the  sum  due  in 
May  from  their  own  private  funds,  and  the  balance  from  the 
estate  of  the  intestate,  and  with  the  intention  of  making  an 
immediate  sale  of  the  property  and  securing  the  advances  so 
made  by  themselves,  the  administrators  took  an  absolute  title 
to  themselves  in  fee  simple.  It  is  alleged  in  the  complaint 
that  the  title  was  so  taken  by  the  administrators  for  the  benefit 
of  the  children  of  the  intestate,  subject  only  to  the  mortgages 
and  the  advances  so  made  by  the  administrators.  The  said 
children,  and  the  widow  and  administrators,  are  all  made 
parties  to  the  action,  and  the  administrators  make  no  claim 
adverse  to  the  said  allegations  as  to  the  title,  and  claim  only 
for  their  said  advances  as  against  the  title  of  the  children  of 
their  intestate.  Any  claim  of  an  absolute  title  by  the  admin- 
istrators, in  themselves,  would  be  a  fraud  under  the  conceded 
facts.  It  is  clear  that  the  fee  simple  to  the  lands,  and  every 
equitable  right  or  title,  was  vested  in  the  parties  to  the  action 
at  the  time  of  its  commencement.  Whether  Mrs.  Smith  and 
Mr.  Stevenson  are  the  plaintiffs  or  the  defendants,  on  this  state 
of  facts  is  of  no  consequence.  The  parties  are  seized  of  the 
whole  title  and  are  before  the  court.  The  decree  or  judg- 
ment binds  them.  It  appears,  also,  that  the  administrators  are 
ready  to  give  their  confirmation  of  the  title  by  deeds  to  the 
respective  purchasers.  Besides,  if  the  title  of  the  heirs  be 
simply  an  equitable  one,  there  is  no  difficulty  in  taking  cog- 
nizance, as  a  court  of  equity,  of  the  case  presented  by  the 


1872.]  OF  THE  STATE  OF  NEW  YORK  49? 

Herbert  ».  Smith. 

complaint,  and  relieving  the  parties  from  the  embarrassments 
and  complications  arising  from  the  large  investment  of  the 
money  of  the  intestate  in  the  purchase  of  the  land,  while  the 
title  is  held  as  security  for  a  comparatively  small  sum  by  the 
administrators,  and  decreeing  thereon  a  sale  of  the  premises, 
in  the  nature  of  a  partition,  and  a  just  and  equitable  division 
of  the  proceeds. 

2.  The  infant  defendants,  it  is  said,  have  not  been  duly 
served. 

The  affidavit  to  procure  the  order  of  publication  states  that 
all  of  them  reside  at  Selma,  Alabama,  but  one  of  them,  Oscar, 
is  temporarily  absent  at  Bellevue  High  School,  Virginia. 
The  order  directs  service  to  be  made  by  publication  in  two 
newspapers  once  in  each  week  for  six  weeks,  and  the  usual 
direction  that  copies  of  the  summons  and  complaint  be  mailed 
to  each  of  the  said  non-residents  at  their  said  places  of 
residence. 

At  the  time  the  decree  was  taken  it  appeared  that  the  sum- 
mons and  complaint  had  been  mailed,  directed  to  Oscar  at 
the  place  in  Virginia  where  he  was  temporarily  residing ;  but 
it  was  not  then  made  to  appear  that  the  summons  and  com- 
plaint had  been  mailed  and  directed  to  him  at  Selma,  his 
residence.  This  defect  was  afterward  cured  by  an  order  of 
this  court  on  affidavits  proving  that  the  summons,  &c.,  was, 
in  fact,  mailed  and  properly  directed  to  Oscar,  at  Selma,  on 
the  same  day  that  the  other  copies  were  mailed  to  him  at 
Virginia,  directing  that  such  proof  be  filed,  nunc  pro  tune. 
I  think  the  supplemental  affidavits  show  that  the  summons 
and  complaint  were  properly  posted  and  directed,  and  the 
amendment  has  cured  the  defect. 

The  publication  in  the  two  newspapers  was  not  conducted 
simultaneously  during  the  whole  six  weeks.  In  one  paper 
the  publication  was  commenced  on  the  9th  July,  and  the  last 
insertion  was  on  or  before  the  14th  of  August,  1869 ;  and  in 
the  other,  the  first  insertion  was  June  9th ;  and  the  last,  on 
or  before  July  14th,  1869. 

The  next  step  taken  against  the  infant  non-resident 
LANSING — VOL.  VL  63 


498  CASES  IN  THE  SUPREME  COURT        [Nov., 

Herbert  v.  Smith. 

defendants  was  on  September  27th,  ensuing,  when  guardians 
were  appointed  by  the  court  by  order,  on  application  of  the 
plaintiff. 

I  am  not  aware  of  any  decision  or  any  provision  of  the 
Code  requiring  the  publication  in  two  newapapers  to  proceed 
concurrently.  Nor  can  I  perceive  any  prejudice  to  the  party 
served  by  publication  by  the  first  and  second  insertions  occur- 
ring at  different  dates.  The  Code  requires  the  advertisement 
to  be  made  continuously  in  each  paper  for  a  certain  number 
of  weeks,  but  not  concurrently.  It  requires  forty -two  days 
to  complete  the  publication,  and  the  defendants  have  twenty 
days  after  that  in  which  to  appear.  The  first  insertion  may 
be  on  the  last  day  of  the  first  week  of  the  publication,  and  the 
last  on  the  first  day  of  the  last  week.  This  publication  of 
six  weeks  may  be  accomplished  between  the  10th  of  July  and 
14th  of  August,  but  the  service  will  not  be  complete,  never- 
theless, until  forty-two  days  after  the  10th  of  July,  the  date 
of  the  first  insertion  in  the  newspaper  last  making  publica- 
tion. The  publication  will  be  complete,  then,  on  the  21st  of 
August ;  adding  twenty  days  for  the  appearance  of  the  non- 
residents, and  they  will  be  in  default  on  the  llth  of  Septem- 
ber. No  proceeding  was  taken  against  the  non-resident 
defendants  until  the  27th  of  September,  1869.  The  making 
of  affidavits,  on  which  to  found  further  proceedings  against 
them,  does  them  no  prejudice,  and  does  not  affect  the  regu- 
larity of  the  plaintiff's  action.  I  consider  the  service  of  the 
summons  and  complaint,  upon  the  non-resident  defendants  in 
this  case,  to  have  been  regularly  made. 

3.  The  third  objection  mentioned  in  the  petition  relates  to 
the  service  on  Oscar  P.  Smith,  and  has  been  already  con- 
sidered. 

The  fourth  objection  relates  to  the  age  of  Oscar,  and  as  a 
question  of  fact  is  fully  answered  by  the  opposing  affidavits. 

The  fifth  objection  refers  to  the  time  for  the  appearance 
and  answer  of  the  infants  (who  are  non-residents),  and  has 
also  been  fully  examined  above. 

The  sixth  objection  relates  to  questions  of  fact,  and  these 


1B72.]  OF  THE  STATE  OP  NEW  YORK.  499 


Herbert  v.  Smith. 


are  fully  and  satisfactorily  explained  by  the  opposing  affidavits. 

The  seventh  objection  questions  the  suitableness  of  the 
guardians  ad  litem  appointed  by  the  court,  and  raised  certain 
questions  of  fact  as  to  the  attention  of  the  guardians  to  the 
interests  of  the  infants  whom  they  represented,  the  money 
advanced  by  the  administrators,  and  the  amount  of  the  estate 
of  their  intestate,  &c.  These  are  not  questions  concerning 
the  jurisdiction  of  the  court  or  the  regularity  of  the  sale,  and 
are  not  grounds  upon  which  the  purchasers  can  be  relieved. 
They  are  fully  explained,  also,  by  the  opposing  affidavits. 

The  eighth  objection  states  that  the  bonds  of  the  guardians 
have  not  been  made,  approved  or  filed.  It  is  wholly  without 
any  foundation  in  fact,  as  appears  from  the  record  and  affida- 
vit read  in  opposition  to  the  motion. 

The  ninth  objection  complains  that  the  referee  exacted  from 
purchasers  less  favorable  terms  than  the  decree  provided,  not 
following  the  terms  of  the  decree,  whereby  the  rights  of  the 
infants  were  prejudiced,  as  the  purchasers  believe  that  the 
more  favorable  terms  mentioned  in  the  decree  would  have 
enhanced  the  price  at  the  partition  sale.  The  referee  reported 
the  sale  to  the  court,  and  it  was  duly  confirmed. 

The  affidavits  show  that  it  was  not  in  fact  prejudicial  to 
the  infants,  but  a  desirable  proceeding  for  their  interest.  I 
think  it  was  not  a  question  with  which  the  purchasers  have 
any  concern,  it  being  one  of  regularity  of  practice  only,  and 
not  of  jurisdiction,  nor  one  upon  which  the  court  would  have 
intervened  after  the  sale,  on  the  application  of  the  parties. 

It  was  an  irregularity  capable  of  amendment,  and  the  judge, 
on  the  hearing  of  the  petition  herein,  directed  the  decree  to 
be  modified  so  as  to  conform  to  the  terms  of  sale,  nunc  pro 
tune,  as  of  a  date  anterior  to  the  sale.  Whatever  ground  for 
the  objection  may  have  existed,  it  is  cured  by  the  amendment. 

The  tenth  objection  is  a  claim  that  the  sale  was  by  the 
referee  adjourned  to  a  day  in  February,  1872,  and  without 
any  advertisement  of  a  sale  for  that  day,  or  any  adjournment 
in  February,  the  sale  was  actually  made  in  March.  The  affi- 
davits of  the  parties  who  resist  the  motion  prove  that  on  the 


500  CASES  IN  THE  SUPKEME  COURT          [Nov., 


Herbert  0.  Smith. 


confirmation  of  a  sale  of  a  portion,  of  the  premises,  on  the 
28th  November,  1872,  the  court  by  an  order  directed  the  sale 
of  the  other  lots  "  to  stand  over  "  to  a  future  time.  The  time 
in  February  mentioned  by  the  referee  in  his  report  was  nulli- 
fied by  the  order  of  the  court.  The  opposing  affidavit  states 
that  the  sale  in  March  was  advertised  for  six  weeks,  pursuant 
to  the  directions  of  the  decree.  I  find  it  mentioned  on  the 
points  of  counsel,  that  posters  notifying  the  public  of  the  sale 
were  not  put  up  in  season ;  that  they  were  posted  only  forty 
days  prior  to  the  sale.  I  find  nothing  in  the  moving  papers 
of  any  such  defect,  and  on  reference  to  the  decree,  there  is  no 
direction  for  posters  to  be  found.  There  appears  to  be  no 
ground  for  this  objection. 

The  eleventh  objection  suggests  that  there  are  creditors  of 
the  intestate ;  that  the  administrators  have  not  advertised  for 
claims,  and  the  real  estate  of  the  intestate  is  liable  to  creditors. 
The  opposing  affidavit  states  that  more  than  three  years  have 
elapsed  since  the  appointment  of  the  administrators,  and  no 
creditor  has  been  heard  of,  and  no  petition  or  claim  has  been 
made.  The  petitioners  mention  no  particular  creditor,  but 
make  a  general  allegation  that  the  estate  was  largely  indebted. 
The  veracity  of  the  statement  is  sustained  by  the  liability  of 
the  intestate  upon  the  contract  for  the  purchase  of  the 
premises  in  question.  It  is  insufficient,  however,  to  sustain 

the  objection. 

The  presumption  is  adverse  to  the  existence  of  such  debts. 

(Bogert  v.  Bogert,  45  Barb.,  121.)  This  authority  is  also  in 
point  as  to  some  of  the  other  objections.  The  charge  is  too 
indefinite  to  disturb  the  validity  of  the  sale. 

The  twelfth  objection  states  that  a  succession  tax  is  due  to 
the  United  States,  which  is  a  lien. 

The  affidavit  on  behalf  of  the  parties  states  that  the  intes- 
tate was  a  resident  of  Alabama,  where  he  had  a  large  estate ; 
that  there  is  no  such  tax  capable  of  being  ascertained  in  this 
State  until  the  proceeds  of  the  sale  of  the  said  premises  has 
been  realized ;  that  there  is  no  other  property  of  the  deceased 
in  this  State. 


1872.]  OF  THE  STATE  OF  NEW  YORK.  501 

Herbert  v.  Smith. 

The  thirteenth  objection  is  that  there  are  mortgages  unsat- 
isfied, and  the  referee  was  not  prepared  to  satisfy  them  at  the 
time  mentioned  for  delivery  of  the  deed.  This  position  is 
met  by  affidavit  that  the  amount  to  be  paid  by  the  purchas- 
ers was  sufficient  to  extinguish  the  mortgages,  and  the  hold- 
ers were  at  hand  and  ready  to  receive  the  money  and  deliver 
satisfaction  thereof.  The  referee  also  so  certifies. 

Fourteenth  objection.  That  there  is  a  defect  in  the  chain 
of  title;  that  Bancel  was  the  owner  in  1825,  and  mortgaged 
to  Bouchard  in  trust  for  infants ;  that  Bouchard  foreclosed  in 
1828,  and  bought  in  the  premises  for  half  the  mortgage  debt, 
taking  title  in  his  individual  right ;  that  he  sold  to  Williams 
in  1835,  in  his  individual  right,  for  more  than  double  the 
price  paid ;  this  transaction  is  suggested  to  be  a  fraud  upon 
his  cestui  que  trust,  and  that  their  release  is  necessary ;  that 
Hie  deed  from  Bouchard  to  Williams  is  a  nullity. 

It  is  stated  in  opposition  to  this  point,  by  affidavit,  that  no 
claim  on  the  part  of  the  cestui  que  trust  has  ever  been 
advanced,  now  a  period  of  more  than  forty  years  since  Bou- 
chard acquired  the  title,  and  that  there  is  a  valid  deed  from 
him  to  Williams,  dated  in  January,  1835,  duly  recorded,  in 
consideration  of  $11,000. 

I  think  the  claim  of  the  cestui  que  trust,  if  any,  has  been 
barred  by  lapse  of  time.  But  there  is  no  evidence  offered 
that  Bouchard  did  not  well  and  properly  account  to  those  for 
whom  he  acted  as  trustee,  and  the  presumption  is  to  the  con- 
trary. The  title  has  been  since  transferred  eight  or  nine 
times,  and  there  appears  nothing  against  it  but  a  vague  and 
indefinite  suggestion  that  the  deed  of  Bouchard  is  a  nullity. 

Fifteenth  and  last  objection  is  that  the  old  Bloomingdale 
road  is  a  portion  of  the  premises  in  question,  and  the  petition- 
ers are  of  the  opinion  that  the  title  to  that  road  is  vested  in 
the  corporation  of  the  city  of  New  York. 

The  respondents  allege  that  the  lot  purcased  by  Mr.  Eno 
is  the  only  one  affected  by  this  objection ;  that  the  fee  of  this 
gore  reverted  to  the  owners  of  the  adjoining  land  under  §  3, 
of  chap.  697  of  the  Session  Laws  of  1867. 


502  CASES  IN  THE  SUPREME  COURT          [Nor*, 

Hildebranfe.  Crawford. 

The  petitioners  have  not  argued  this  objection,  and  it 
appears  to  have  no  foundation. 

There  are  several  mis-recitals  of  dates  in  the  proceedings ; 
several  matters  have  been  amended  since  the  decree,  nun& 
pro  tune ;  and  there  is  no  doubt  that  the  practice  was  con- 
ducted in  a  careless  style ;  but  I  find  no  objection  that  has 
not  been  cured,  or  that  has  a  sufficient  foundation  to  defeat 
the  contract  of  the  purchasers.  ' 

The  order 'should  be  affirmed,  with  costs. 


CHARLES  HILDEBRANT,  Respondent,  v.  EDGAR  M.  CRAWFORD,, 

Appellant. 

EDGAR  M.  CRAWFORD,  a  survivor,  &c.,  Appellant,  v.  CHARLE& 
HILDEBRANT  and  others,  Respondents. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

An  agent,  acting  within  the  general  scope  of  his  apparent  authority,  pur- 
chased personal  property,  for  which  he  gave  a  note  signed  by  him  as 
agent,  without  naming  the  principal.  The  property  purchased  was 
received  by  the  principal.  Held,  the  payee  having  taken  the  note  bona 
fide  that  it  bound  the  principal,  notwithstanding  the  agent's  instructions 
prohibited  him  from  giving  notes. 

Held,  also,  that  the  receipt  of  the  property,  for  which  the  note  was  given, 
rendered  the  principal  liable  for  its  value,  and  that  the  note  was  at  least 
evidence  of  such  value  in  an  action  counting  on  the  indebtedness,  as 
well  as  on  the  note. 

The  prohibition  of  section  399  of  the  Code  does  not  prevent  a  party  from 
testifying,  in  an  action  in  which  the  legal  representatives  of  a  deceased 
person  are  adverse  parties,  to  a  conversation  between  the  deceased  and 
a  third  person,  also  deceased,  which  was  overheard  by  the  witness. 

Nor  is  a  party  prohibited  by  that  section  from  testifying  to  a  transaction 
between  himself  and  the  agent  of  deceased,  previous  to  the  time  of  his 
death. 

Parol  evidence  is  admissible  in  an  action  for  the  foreclosure  of  a  mortgage, 
payable  in  money,  assigned  by  the  mortgagee  as  collateral  security  for 
the  payment  of  his  indebtedness  to  the  assignee,  that  it  was  agreed  that 
such  indebtedness  was  to  be  paid  in  produce. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  503 


Hildebrant  v.  Crawford. 


A  statement  copied  from  a  book  of  account  and  compared  therewith  is, 
upon  loss  of  the  book,  admissible  to  prove  the  account. 

Where  two  actions  are  tried  together,  costs  are  taxable  in  both,  except,  per- 
haps, it  seems  but  one  trial  fee  should  be  allowed. 

THE  first  of  the  above  entitled  actions  was  brought  to 
recover  the  sum  of  $1,822.10  for  produce  alleged  to  have 
been  sold  and  delivered  by  the  plaintiff  to  one  Joseph  Kellogg, 
the  agent  of  E.  M.  Crawford,  defendant,  and  the-amount  of  two 
promissory  notes  signed  by  Kellogg,  agent,  without  stating 
for  whom  made,  given  for  tobacco  purchased  of  plaintiff  for  the 
firm  of  Crawford  &  Palmer,  and  Bidder  &  Palmer,  of  which 
the  defendant  was  the  survivor.  The  account  was  alleged  to 
have  commenced  in  December,  1856,  and  continued  till  1860. 
Some  small  payments  in  money  are  alleged  to  have  been 
made  on  the  account  in  the  years  1857,  1858  and  1861.  This 
action  was  commenced  the  28th  day  of  May,  1866. 

The  answer  of  the  defendant  Crawford  sets  up,  substan- 
tially, a  denial  of  indebtedness  to  plaintiff,  and  also  the 
statute  of  limitations. 

On  the  llth  day  of  July,  1867,  or  thereabouts,  Edgar  M. 
Crawford,  as  surviving  partner  of  Bidder,  Crawford  &  Pal- 
mer, commenced  an  action  in  this  court  against  Charles 
Hildebrant  and  others  to  foreclose  a  mortgage  executed  by 
Theodore  Hildebrant  to  Charles  Hildebrant,  and  assigned  by 
Charles  Hildebrant  to  Bidder,  Crawford  &  Palmer  as  col- 
lateral security  for  the  payment  of  the  sum  of  $800,  payable 
in  three  years  from  the  date  of  said  assignment,  with  interest 
annually  thereon.  Such  assignment  was  executed  the  18th 
day  of  July,  1851. 

The  defendant,  Charles  Hildebrant,  alleges  in  his  answer 
to  said  complaint  that  Bidder,  Crawford  &  Palmer  were,  in 
the  year  1856  and  for  some  years  thereafter,  copartners  in  the 
manufacture  and  sale  of  tobacco  at  Ithaca.  That  such  busi- 
ness was,  during  that  period,  carried  on  by  their  agent,  Joseph 
Kellogg. 

That  in  April,  1856,  the  defendant,  Hijdebrant,  purchased 
a  farm  of  about  three  hundred  acres  of  one  Isaac  A.  Hawley, 


504  CASES  IN  THE  SUPREME  COURT  [Nov., 

Hildebrant  ®.  Crawford. 

That  in  part  payment  of  the  purchase-price  of  said  farm 
Hawley  took  a  house  and  lot  belonging  to  Ridder,  Crawford 
&  Palmer  at  $800,  and  Hildebrant  made  the  assignment  of  this 
mortgage  for  $800  to  secure  the  payment  thereof  to  them. 
That  it  was  agreed  by  Hildebrant,  with  Ridder,  Crawford  & 
Palmer,  that  such  sum  ($800  and  interest)  should  be  paid  in 
produce  from  the  farm,  except  that  some  money  should  be  paid 
if  necessary.  This  contract  is  alleged  to  have  been  made  with 
plaintiff's  agent,  Joseph  Kellogg.  The  answer  then  set  out 
the  cause  of  action  contained  in  the  complaint  in  the  first 
action ;  and  further  alleged  that  Crawford,  the  plaintiff  in 
the  second  action,  was  indebted  to  Hildebrant  for  produce, 
&c.,  and  prayed  an  accounting  between  the  parties  to  the 
actions. 

Both  actions  were  referred  to  the  same  referee  and  tried 
together.  The  facts  material  to  a  proper  disposition  of  the 
questions  raised  are  sufficiently  stated  in  the  opinion. 

The  referee  found,  as  matter  of  law,  that  the  amount  due 
on  the  assignment  of  the  mortgage  was  fully  paid,  and  that 
Crawford  was  indebted  to  Hildebrant  in  the  sum  of  $688.08, 
and  that  Hildebrant  was  entitled  to  judgment  therefor,  with 
costs  in  both  actions.  Exceptions  were  duly  taken  to  the 
referee's  report. 

Judgment  was  entered  upon  the  referee's  report,  and  the 
appeal  was  taken  by  Crawford. 

The  case  was  submitted  upon  printed  points. 

Lyon  t&  Donnell/y,  for  the  appellants. 

Ferris  &  Dowe,  for  the  respondents. 

Present — MILLER,  P.  J.,  PARKER  and  DANIELS,  JJ. 

MILLER,  P.  J.  There  was  no  error  in  the  finding  of  the 
referee  that  Crawford,  as  survivor,  was  indebted  to  Hilde- 
brant in  two  promissory  notes  in  the  sum  of  $573.62.  These 
notes  were  signed  by  "  J.  Kellogg,  agent,"  and  the  name  of 
the  principal  does  not  appear  upon  the  face  of  either  of  them. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  505 


Hildebrant  v.  Crawford. 


It  is  alleged  in  the  complaint  in  the  first,  and  in  the  answer 
in  the  second  action,  that  Kellogg  acted  as  agent  in  the 
tobacco  business,  at  Ithaca,  for  Eidder,  Crawford  &  Palmer 
for  the  firm  of  Crawford  &  Palmer,  survivors,  and  for  Craw- 
ford as  survivor  and  successor  of  Eidder  &  Palmer.  These 
allegations  are  admitted  in  the  answer  in  the  first  action,  and 
in  the  reply  in  the  second  action,  with  the  qualification  in 
both  that  Kellogg  had  no  right  to  make  debts  or  to  give 
notes,  but  was  prohibited  from  doing  so,  which  was  well 
known  to  Hildebrant. 

Although  the  signing  of  the  notes  by  Kellogg  as  agent, 
alone  and  of  itself,  would  not  bind  the  principal,  who  is  not 
named,  yet,  in  connection  with  the  allegations  in  the  com- 
plaint in  the  first  action,  that  Kellogg,  as  agent  and  for  the 
benefit  of  his  principal,  and  within  the  scope  of  his  power  and 
authority,  purchased  of  the  plaintiff  personal  property,  for 
which  the  notes  were  given,  and  the  evidence  given  on  the 
trial,  the  finding  of  the  referee  was  fully  justified.  There 
can  be  no  doubt  that  a  principal  is  responsible  for  the  act  of 
the  agent,  which,  although  an  abuse  or  excess  of  his  authority, 
was  within  the  general  scope  of  the  business  he  was  employed 
to  transact  where  the  party  with  whom  the  business  is  trans- 
acted has  no  notice  of  any  limitation  of  authority,  and  would 
otherwise  suffer  loss.  (Clark  v.  The  Metropolitan  Sank,  3 
Duer,  248  ;  Dunning  v.  Roberts,  35  Barb.,  463,  467 ;  Whit- 
leek  v.  Schuyler,  44  Barb.,  269,  471 ;  Lefier  v.  Field,  50 
Barb.,  407-411.)  Upon  the  trial  before  the  referee  Crawford 
testified  that  Kellogg  was  an  agent  for  certain  purposes ;  that 
he  had  no  authority  to  contract  any  debt,  except  through  his 
principals,  and  was  never  authorized  to  give  notes  or  written 
instruments,  or  to  deal  in  real  estate ;  but  his  testimony  is 
contradicted  by  other  evidence  in  the  case,  which  tends  to 
establish  that  there  was  no  limitation  to  Kellogg's  authority. 
The  letters  from  Crawford,  introduced  in  evidence,  recognize 
Kellogg  as  agent,  and  his  liability  for  Kellogg's  paper  as 
agent,  which  was  laying  over.  Notes  and  accounts  made  by 
Kellogg  were  also  paid  by  Crawford's  agent,  thus  again  recog- 

LANSIXG — VOL.  VI.          64 


506  CASES  IN  THE  SUPREME  COURT         [Nov., 


Hildebrant  v.  Crawford. 


nizing  Kellogg's  authority  to  create  such  liabilities.  There 
was  ample  evidence,  I  think,  to  warrant  the  conclusion  that 
Kellogg  was  authorized  to  make  the  notes  in  question.  But 
even  if  there  was  no  positive  authority  to  sign  the  notes  as 
agent,  as  the  proof  showed  that  Crawford  had  received  the 
property  sold,  and  had  the  benefit  of  it,  the  notes  were  at 
least  evidence  of  the  amount  of  the  purchase.  If  the  notes 
were  of  no  avail  the  purchasers  would  still  be  liable  for  the 
property  which  they  actually  had ;  and,  in  this  point  of  view, 
the  amount  reputed  as  due  was  right.  In  De  Witt  v.  Wal- 
ton (5  Selcl.,  572),  cited  by  the  counsel  for  Crawford,  the  com- 
plaint was  on  the  note  alone,  and,  hence,  the  authority  is  not 
in  point. 

Even  if  it  really  be  questioned  whether  oral  evidence  was 
admissible  where  the  action  is  on  the  note  alone,  yet,  with 
the  allegations  in  the  complaint  as  to  the  agency  and  the 
purpose  for  which  the  notes  in  question  were  made,  it  was 
clearly  admissible  to  prove  in  this  manner  that  Kellogg  was 
an  agent. 

It  is  insisted  that  the  referee  erred  in  permitting  Hildebrant 
to  testify  to  a  conversation  between  Bidder,  one  of  the  part- 
ners, and  Kellogg,  in  the  presence  of  Hildebrant,  in  relation 
to  the  taking  of  produce  in  payment  of  the  $800  indebted- 
ness. 

Kellogg  and  Bidder  were  both  deceased,  and  Crawford  was 
the  surviving  partner.  Hildebrant  was  present  at  the  con- 
versation between  Bidder  and  Kellogg,  when  Kellogg  told 
Bidder  that  he  had  sold  the  witness  the  house  and  lot,  and  he 
was  to  have  the  produce  of  the  farm  to  pay  for  it.  Kellogg 
asked  Bidder  what  he  thought  of  the  arrangement  to  get  pro- 
duce in  pay  for  the  house  and  lot,  and  Bidder  said  that  he 
thought  it  was  a  good  idea.  This  conversation  was  designed 
to  show  the  liability  of  the  firm  to  Hildebrant  on  the  alleged 
contract,  and  the  evidence  was  objected  to  upon  the  ground 
that  it  was  a  transaction  or  communication  with  a  deceased 
person,  within  §  399  of  the  Code,  and  therefore  was  not 
admissible.  I  think  that  within  the  principle  of  /Simmons  v. 


1871.]  OF  THE  STATE  OF  NEW  YORK.  507 


Hildebrant  v.  Crawford. 


Sisson  (26  N.  Y.,  264),  the  transaction  or  communication 
respecting  which  the  testimony  was  given,  was  not  between 
the  witness  and  the  deceased,  but  between  the  deceased  and 
a  third  person,  and  therefore  the  testimony  was  proper.  In 
the  case  cited,  it  was  held  that  the  prohibition  of  §  399  does 
not  prevent  a  party  from  testifying  in  an  action  in  which  the 
legal  representatives  of  a  deceased  person  are  adverse  parties, 
to  a  conversation  between  the  deceased  and  a  third  person, 
which  was  overheard  by  the  witness,  and  that  the  hearing  of 
such  conversation  is  not  a  transaction  between  the  deceased 
and  the  witness.  This  is  directly  in  point.  (See  also  Lob- 
dell  v.  Loldell,  36  N.  Y.,  333.) 

The  evidence  of  the  agreement  made  between  Hildebrant  and 
Kellogg  as  to  the  house  and  lot  and  mortgage,  was  also  com- 
petent testimony.  It  was  not  a  transaction  or  communication 
within  §  399  of  the  Code.  Nor  was  proof  that  the  payments 
were  to  be  made  in  produce  and  grain  from  the  farm  any  con- 
tradiction of  the  written  agreement  of  the  mortgage.  It  wag 
admissible  evidence  to  establish  payment  in  a  particular  man- 
ner. 

The  statement  of  Hildebrant's  account  was  also  competent 
testimony.  There  was  evidence  to  prove  that  the  books  were 
lost ;  that  the  statement  was  a  copy  of  the  account  which  had 
been  compared  with  the  books.  This  was  the  highest  evidence 
which  could  be  produced  under  the  circumstances,  and  was 
properly  admitted. 

I  also  think  that  the  letters  were  properly  received  as  evi- 
dence. It  is  alleged  that  they  were  immaterial,  but  it  -is  not 
pointed  out  in  what  respect,  if  any,  they  were  liable  to  this 
objection.  Nor  is  it  apparent  from  their  perusal  that  they 
were  not  pertinent. 

The  evidence  as  to  the  wood  alleged  to  have  been  delivered  to 
Kellogg,  as  agent,  was  objected  to  upon  the  ground  that  there 
was  no  such  claim  made  in  the  pleadings,  and  no  amendment 
was  asked  for  upon  the  trial.  It  does  not  appear  to  be  named 
specifically  in  the  pleadings.  Nor  does  it  appear  from  the 
case  that  any  sum  was  allowed  for  wood,  and  therefore  if  there 


508  CASES  IN  THE  SUPREME  COURT         [Nov., 


Hildebrant  v.  Crawford. 


was  error  in  admitting  the  evidence,  it  is  not  apparent  that 
any  injury  was  done. 

As  it  would  have  been  proper  to  amend  the  pleadings  so  as 
to  include  the  wood  upon  the  trial,  and  I  am  inclined  to  think 
even  now  an  amendment  might  be  made,  the  admission  of 
the  testimony  would  not  be  sufficient  cause  for  a  new  trial. 

The  position  taken  that  the  judgment  is  against  the  weight 
of  the  evidence,  and  that  therefore  it  should  be  reversed,  can- 
not, I  think,  be  maintained.  The  defence  to  the  mortgage 
was  that  the  debt  had  been  paid,  and  the  principal  evidence 
to  prove  payment  was  the  testimony  of  Hildebrant,  to  the 
effect  that  there  was  an  agreement  between  Joseph  Kellogg, 
the  agent,  and  himself,  which  was  sanctioned  by  Ridder,  one 
of  the  assignees  of  the  mortgage  and  partners,  that  it  was  to 
be  paid  in  produce  from  the  farm.  It  is  claimed  that  this 
testimony  is  contradicted  by  various  facts  and  circumstances ; 
but  it  is  a  sufficient  answer  to  this  position  to  say  that  while 
many  of  those  facts  tend  strongly  to  contradict  Hildebrant, 
it  is  by  no  means  clear  that  they  are  not  sufficiently  explained. 
It  was  a  question  of  credibility  to  a  great  extent,  and  the 
referee,  after  hearing  Hildebrant  testify,  has  thought  proper 
to  credit  his  direct  testimony  and  the  explanation  he  has 
given  to  the  facts  which  seem  to  contradict  his  statements. 
I  am  not  prepared  to  say  that  there  is  such  a  preponderance 
of  testimony  against  Hildebrant's  version  of  the  matter  as 
would  justify  a  reversal  of  the  referee's  decision  upon  this 
question  of  fact. 

The'  referee  allowed  Hildebrant  costs  in  both  actions, 
although  both  actions  were  heard  together.  I  see  no  reason 
why  the  party  succeeding  should  not  have  costs  in  both 
actions,  so  far  as  they  were  separated.  "When  heard  together, 
perhaps,  only  the  trial  fee  is  chargeable ;  but  until  a  trial,  the 
costs  must  necessarily  be  separate.  This  is  not  a  case  where 
causes  are  consolidated  in  one  action  by  order  of  the  court 
and  a  single  suit  only  is  pending.  (See  17  Wend.,  228.)  The 
decision  of  the  referee  was  correct,  and  the  amount  to  be 
taxed  was  a  question  to  be  determined  upon  the  adjustment 


1871.]  OF  THE  STATE  OF  NEW  YORK.  509 

Baker  ».  Baker. 

of  the  costs.  If  any  improper  charge  was  made,  the  clerk 
should  have  deducted  it,  and  if  he  erred,  it  should  be  cor- 
rected in  an  appeal  from  the  taxation. 

There  is  no  other  question  in  the  case  which  requires  dis- 
cussion, and  there  being  no  error,  the  judgment  must  be 
affirmed  with  costs. 

Judgment  affirmed. 


JEROME  E.  BAKEK,  Respondent,  v.  WAEKEN  L.  BAKEE, 
Appellant. 

(GENERAL  TEEM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

Where  a  revenue  stamp  is  omitted  from  a  promissory  note  or  other  written 
instrument  at  the  time  it  is  made,  by  mistake  and  without  intention  to 
evade  the  revenue  laws,  the  instrument  is  not  by  reason  of  such  omission 
invalid  hi  its  inception. 

In  order  to  invalidate  the  instrument,  a  fraudulent  intent  must  be  affirma- 
tively shown,  and  the  burden  of  proof  of  such  intent  is  upon  the  party 
objecting  to  the  want  of  a  stamp. 

The  action  was  brought  upon  two  promissory  notes  and 
indebtedness  for  work  and  labor.  A  defence  was  interposed 
of  the  statute  of  limitations  as  to  first  note,  and  as  to  second 
that  it  was  void  because  of  the  omission  of  the  parties  to  stamp 
it.  The  cause  was  tried  before  a  referee,  who  sustained  the 
defence  as  to  the  first  note,  and  ordered  judgment  for  the 
plaintiff  against  the  defendant  for  the  amount  of  second  note 
and  the  claim  for  work  and  labor,  amounting  to  $595.72,  and 
judgment  was  perfected  accordingly  for  $702.97,  damages 
and  costs,  from  which  the  defendant  appealed  to  this  court. 

The  following  leading  facts  were  found  by  the  referee :  That 
on  the  30th  of  March,  1863,  defendant  made  a  note  in  writing, 
whereby  he  promised  to  pay  Deborah  Baker  $500  five  years 
from  date.  That  on  the  17th  of  November,  1869,  said  Debo- 
rah Baker  assigned  the  note  to  the  plaintiff.  The  referee  also 
made  a  certain  other  finding  and  refusal  to  find  as  requested 
by  the  defendant's  counsel  in  certain  particulars,  which 


510  CASES  IN  THE  SUPREME  COURT       [March, 


Baker  v.  Baker. 


so  far  as  material,  are  sufficiently  stated  in  the  opinion. 
Exceptions  were  duly  and  properly  taken  to  the  referee's 
report.  It  appeared  upon  the  trial  that  there  was  no  internal 
revenue  stamp  put  upon  the  note  by  either  party  at  the  time 
it  was  made,  nor  at  any  time  afterward,  until  it  was  assigned 
to  the  plaintiff,  when  stamps  to  the  amount  of  thirty  cents 
were  put  on  the  ~back  of  the  note  next  to  the  written  assign* 
ment,  and  obliterated  by  the  letters  "  D.  B.  Nov.  17th,  1869." 
These  stamps  were  put  on  and  canceled  by  the  plaintiff  in 
pursuance  of  the  authority  given  by  Deborah  Baker,  the  payee, 
when  the  assignment  was  made,  "to  put  a  stamp  on  said 
assignment  and  cancel  the  same."  The  defendant  never 
authorized  any  one  to  put  a  stamp  on  the  note.  There  was 
no  other  stamp  on  the  note  when  offered  in  evidence,and  no 
stamp  was  put  on  during  the  trial.  Other  evidence  was  also 
given  on  the  trial  which  is  also  stated  in  the  opinion. 

A  judgment  was  entered  upon  the  referee's  report  in  favor 
of  the  plaintiff,  and  the  defendant  appealed  to  the  General 
Term  of  the  Supreme  Court.  The  case  was  submitted  upon 
printed  points. 

E.  Countryman,  for  the  appellant  and  defendant. 
A.  Hardy,  for  the  respondent  and  plaintiff. 
Present — MILLER,  P.  <J.,  POTTEK  and  BALCOM,  J.  J. 

MILLEE,  P.  J.  Although  some  of  the  earlier  cases  hold  to 
the  contrary,  I  understand  the  law  to  be  well  settled,  that 
when  a  revenue  stamp  is  omitted  or  left  off  a  promissory  note 
or  other  written  instrument,  at  the  time  it  is  made,  by  mis- 
take and  without  any  intention  to  evade  the  revenue  laws, 
the  instrument  or  note  is  not  by  reason  of  such  omission 
invalid  in  its  inception.  (Schemerhorn  v.  Burgess,  55  Barb., 
422 ;  38  How.,  123 ;  N.H.&  *N.  Co.  v.  Quintard,  6  Abb.  [N. 
Sj,  128 ;  37  How.,  29 ;  Vaughan  v.  O'£rien,  57  Barb.,  491.) 
The  rule  established  has  been  followed  in  this  department, 
and  I  think  must  be  considered  as  controlling  in  preference 


1872.]  OF  THE  STATE  OF  NEW  YORK.  511 


Baker  v.  Baker. 


to  the  cases  relied  upon  to  sustain  a  different  doctrine  which 
are  of  an  earlier  date,  and  which  have  been  questioned.  (See 
48  Barb.,  615 ;  56  id,.  218,  bearing  directly  upon  the  question 
and  supporting  the  view  expressed.  See  also  The  People  v. 
Gates,  43  N.  Y.,  40.) 

The  only  remaining  question  in  the  case  is  whether  the 
revenue  stamp  upon  the  note,  upon  which  judgment  was 
recovered,  was  left  off  with  the  intent  to  evade  the  act  of 
congress.  According  to  the  cases,  which  uphold  the  doc- 
trine that  the  stamp  must  be  omitted  with  the  intent  to  evade 
the  act,  the  burden  of  proof  is  upon  the  party  objecting.  The 
referee  has  found  that  there  was  no  such  intent,  and  refused 
to  find  that  the  payee  of  the  note  knew  that  the  note  required 
a  stamp  by  law  when  it  was  executed.  To  which  finding  and 
refusal  to  find,  exceptions  were  separately  taken.  Upon  the 
trial  the  defendant  testified  that  he  told  his  mother,  the 
payee,  that  he  supposed  the  note  would  require  a  stamp ; 
that  she  said  it  need  not  be  stamped ;  as  no  one  would  know 
it  but  him,  there  would  be  no  use  of  stamping  it,  and  that 
was  the  reason  it  was  not  stamped.  He  also  told  her  that 
there  was  a  fine  for  not  stamping  it;  and  he  then  assented  to 
the  suggestion,  that  there  should  be  no  stamp. 

As  it  does  not  affirmatively  and  distinctly  appear  that  the 
defendant's  mother  was  aware  of  the  law,  that  the  omission, 
although  it  subjected  her  to  a  fine,  might  affect  the  validity 
of  the  note,  and  of  the  consequences  arising  from  the  want  of 
a  stamp,  or  that  she  had  any  intention  of  evading  the  pro- 
visions of  the  act,  I  am  inclined  to  think  that,  under  the 
circumstances  existing,  it  does  not  necessarily  follow  that 
there  was  an  actual  intention  to  defraud  the  government. 
Every  legal  presumption  is  against  a  fraudulent  intent ;  and, 
unless  clearly  established  by  sufficient  and  satisfactory  evi- 
dence, it  will  not  be  held  to  exist.  The  only  evidence  of  it 
is  the  testimony  of  the  defendant,  who  is  seeking  to  avoid  the 
payment  of  the  note  upon  strict  legal  grounds. 

This  evidence  must  be  regarded  with  some  considerable 
degree  of  allowance,  and  is  liable  at  least  to  criticism.  It  is 


512  CASES  IN  THE  SUPREME  COURT       [Nov., 

Shirley  «.  Bennett. 

by  no  means  conclusive,  and,  in  fact,  inconsistent  with  the 
promise,  which  one  of  the  plaintiffs'  witnesses  testifies  was 
made  by  the  defendant  upon  his  attention  being  called  to  the 
fact  that  the  note  was  not  stamped,  which  was  that  he  would 
see  to  it  and  make  it  all  right.  The  defendant  knew  what 
the  law  demanded  and  his  mother  did  not ;  and  if  he  allowed 
the  note  to  remain  unstamped  with  a  fraudulent  intent  he 
was  guilty  of  a  direct  fraud  upon  his  mother.  He  should 
have  protected  her  although  an  interested  party ;  and,  con- 
sidering all  the  attendant  facts  and  circumstances,  and  placing 
the  most  favorable  and  reasonable  construction  upon  his  own 
motives,  and  the  intent  of  his  mother,  the  referee  was  justi 
fied,  I  think,  in  finding  that  his  evidence  was  not  to  be  relied 
upon,  and  there  was  no  intent  to  defraud.  It  was  purely  a 
question  of  fact ;  and  I  see  no  reason  to  disturb  this  conclu- 
sion of  the  referee.  The  judgment  was  right  and  must  be 
afiirmed,  with  costs. 
Judgment  affirmed. 


MAKY  ANN    SHIRLEY,  Respondent,  v.  JOHN  C.  BENNETT, 
Administrator,  &c.,  Appellant. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  NOVEMBER,  1871.) 

The  law  is  well  settled  that  a  party  cannot  recover  for  services  rendered 
where  that  party  has  lived  with  the  one,  from  whom  the  compensation 
is  claimed,  as  a  member  of  his  family,  and  has  been  brought  up,  pro- 
vided for  and  educated  as  such,  and  that  relation  has  continued  during 
all  the  time  in  which  such  services  were  rendered. 

A  father  who  has  surrendered  to  a  minor  child  her  wages  in  advance  of 
their  being  earned,  is  a  competent  witness  (under  section  399  of  the 
Code)  in  a  suit  brought  by  the  child  to  recover  such  wages  against  the 
administrator  of  her  employer  to  prove  conversations  and  transactions 
had  by  him  with  the  deceased  in  relation  to  such  employment,  he  having 
never  been  entitled  to  receive  any  of  the  wages,  and  the  child  having, 
therefore,  not  derived  her  title  to  them  through  him. 

THIS  action  was  brought  to  recover  pay  for  work  and  labor 
performed  by  the  plaintiff  for  Christian  Bennett  (the  defend- 


1871.]  OF  THE  STATE  OF  NEW  YORK.  513 

Shirley  v.  Bennett. 

aut's  testator),  commencing  in  April,  1852,  and  continuing 
until  the  last  of  June,  1861,  a  period  of  nine  years  and  about 
two  months. 

The  cause  was  tried  at  the  Cortland  County  Circuit  in 
January,  1870,  before  Justice  BALCOM  and  a  jury. 

The  evidence  established  that  the  testator  was  a  farmer  in 
Oriondaga  county.  The  plaintiff  did  house-work,  drove  cows 
and  milked  them,  fed  calves  and  hogs  and  did  chores. 

That  the  services  were  rendered  and  that  they  were  valua- 
ble services,  and  worth,  the  first  four  or  five  years,  ten  shil- 
lings per  week,  and  for  the  remaining  years,  two  dollars  per 
week. 

The  testator,  in  his  lifetime,  made  some  payments  to  the 
plaintiff  during  the  time  she  worked  for  him;  also  sold 
to  her  some  personal  property. 

The  testator  made  his  will  on  the  29th  day  of  June,  1863, 
and  died  on  the  24th  day  of  September,  1865. 

His  will  was  admitted  to  probate  on  the  12th  day  of  Feb- 
ruary, 1866,  and  letters  testamentary  issued  to  Daniel  Tail, 
as  executor. 

On  the  23d  day  of  July  following,  the  claim  of  the  plain- 
tiff, duly  verified,  was  presented  to  the  executor,  requesting 
its  payment  or  allowance.  And  on  the  4th  day  of  August 
following,  a  written  offer  to  refer  the  claim,  under  the  statute, 
was  served  upon  the  executor,  who  refused  to  allow  the  claim 
or  refer  it,  and  on  the  13th  day  of  said  month  of  August  this 
action  was  commenced. 

Under  the  charge  of  the  judge  the  cause  was  submitted  to 
the  jury,  who  rendered  a  verdict  in  favor  of  the  plaintiff  for 
$524.66. 

During  the  pendency  of  the  action  Daniel  Vail,  the  execu- 
tor, died,  and  John  C.  Bennett  duly  appointed  administrator, 
with  the  will  annexed,  and  by  stipulation  of  the  parties  in 
writing,  dated  October  18th,  1871,  he  was  substituted  as 
defendant  in  this  action. 

The  objections  made  and  exceptions  taken  upon  the  trial 
and  now  urged,  appear  in  the  opinion. 

LANSING — VOL.  VI.        65 


514  CASES  IN  THE  SUPREME  COURT         [Nov., 

Shirley  t>.  Bennett. 

A  judgment  was  entered  upon  the  verdict  and  a  motion 
made  for  a  new  trial  at  Special  Term  and  denied.  The 
defendant  appealed  from  the  order  denying  a  new  trial  and 
from  the  judgment.  The  case  was  submitted  upon  printed 
points. 

Sedgwicks,  Kennedy  <&  Tracy,  for  the  appellant  and 
defendant. 

JSallard  <&  Warren,  for  the  respondent  and  plaintiff. 
Present — MILLER,  P.  J".,  PARKER  and  DANIELS,  JJ. 

By  the  Court — MILLER,  P.  J.  The  law  is  well  settled  that 
a  party  cannot  recover  for  services  rendered  where  that  party 
has  lived  with  another  as  a  member  of  his  family,  to  be  pro- 
vided for,  brought  up  and  educated  as  such,  and  that  relation 
continued  during  all  the  time  that  such  services  were  ren- 
dered. This  decision  was  held  in  this  case,  when  before  the 
Court  of  Appeals,  and  the  judgment  was  reversed  and  a  new 
trial  granted  upon  the  ground  that  the  judge  upon  the  trial 
refused  to  give  proper  instructions  to  the  jury  in  this  particu- 
lar. (See  38  How.  Pr.  R.,  406.)  It  appears  from  the  report 
of  the  case  cited  that  it  was  proved  upon  the  trial  by  John  C. 
Bennett,  a  son  of  the  testator,  that  in  the  fall  of  the  year,  after 
the  plaintiff  came  to  live  in  the  family  of  the  testator,  that 
her  father  came  to  the  testator's  house,  and  that  it  was  then 
understood  between  him-  and  the  testator  that  the  plaintiff 
was  to  live  there  as  a  member  of  the  testator's  family ;  that 
he  was  to  send  her  to  school,  and  take  care  of  her  as  his  child. 
There  was  no  direct  contradiction  of  this  testimony,  and  the 
father  of  the  plaintiff  was  not  a  witness,  and  not  present  at 
the  trial.  On  the  second  trial  he  was  sworn  and  examined 
as  a  witness,  and  positively  denied  that  there  was  any  such 
conversation  or  any  such  arrangement  or  agreement.  The 
father  and  the  plaintiff  also  testified  that  before  she  went  to 
Bennett's  to  live  her  father  told  her  that  she  could  have  her 
wages,  and  that  he  had  never  sought  to  control  her  wages.  It 


1871.]  OF  THE  STATE  OF  NEW  YORK.  515 

Shirley  t>.  Bennett. 

will  be  seen  that  there  is  a  difference  in  the  evidence  between 
the  last  and  the  former  trial,  and  there  is  a  direct  contradic 
tion  as  to  the  main  fact  in  controversy,  which  was  proper  for 
the  consideration  of  the  jury.  The  judge,  therefore,  pro- 
perly refused  to  instruct  them  that  from  the  whole  evidence 
it  appeared  that  the  plaintiff  went  to  live  with  the  testator  as 
a  member  of  his  family,  to  be  taken  care  of  and  provided  for 
as  such,  and  not  as  a  hired  servant,  and  entitled  towages,  and 
that  the  jury  should  find  for  the  defendant  on  that  ground. 

The  court  did  not  err  in  refusing  to  instruct  the  jury  that 
the  plaintiff  could  not  recover  for  services  rendered  more  than 
six  years  prior  to  the  testator's  death.  The  plaintiff  lived 
with  the  deceased  from  April,  1852,  to  June,  1861.  She  was 
married  on  the  27th  of  December,  1860.  Six  weeks  before 
she  was  married  the  deceased  sold  a  cow  to  the  plaintiff  for 
twenty  dollars.  Shortly  before  her  marriage  ten  dollars  was 
paid  to  her,  and  at  one  time  a  pair  of  shoes  was  delivered ; 
also  a  box  of  clothing,  bed,  bedding  and  several  dresses.  The 
testator  died  on  the  24th  of  September,  1865,  and  letters  tes- 
tamentary were  not  issued  until  the  12th  day  of  February, 
1860.  The  action  was  brought  in  August,  1866.  The  pay 
mei-t  of  money  and  the  articles  delivered  kept  the  claim  alive 
and  prevented  the  statute  of  limitations  being  a  bar  to  it. 
The  action  was  brought  before  six  years  had  elapsed  after 
this  payment,  and  before  the  statute  had  attached. 

An  objection  is  made  that  the  judge  erred  in  allowing 
Edward  Naylor,  the  father  of  the  plaintiff,  to  testify  to  trans- 
actions with  the  deceased,  or  conversations  with  him,  on  the 
ground  that  he  was  originally  entitled  to  the  demand  for  ser- 
vices. The  witness  had  waived  his  right  to  the  daughter's 
services  by  emancipating  her ;  and  by  means  of  such  emanci- 
pation he  had  relinquished  his  claim,  and  authorized  her  to 
labor  for  herself  and  to  receive  her  own  earnings.  (See  Shute 
v.  Dorr,  5  Wend.,  206.)  The  services  were  performed  after 
the  emancipation  had  taken  place,  and  the  witness  did  not 
have  at  any  time  any  such  legal  demand  for  the  services  ren- 


516  CASES  IN  THE  SUPREME  GOURT    •     [March, 

Filkins  v.  Baker. 

dered  as  would  exclude  him  from  being  a  witness  within  the 
provisions  of  section  399  of  the  Code  of  1869. 

The  plaintiff  and  her  husband  were  also  competent  wit- 
nesses on  the  trial ;  and  none  of  the  testimony  given  by  them 
to  which  objection  was  made  was  improperly  received. 

No  other  points  are  urged  as  error,  and  the  judgment  and 
order  must  be  affirmed,  with  costs. 

Judgment  affirmed. 


GERMAN  FILKINS,   Respondent,   v.  AUSTIN  E.   BAKER  and 
another,  Appellants. 

(GENERAL  TERM,  THIRD  DEPARTMENT,  MARCH,  1872.) 

A  witness  may  not  testify  to  the  reason  others  had  for  their  conduct; 

such  testimony  is  but  the  expression  of  an  opinion. 
A  witness  may  refresh  his  memory  from  a  copy  made  by  himself,  of  hia 

memorandum,  on  proof  that  the  original  memorandum  is  lost. 
Items  of  charge  for  labor  and  services,  made  up  from  memoranda  in 

detail  previously  taken  daily,  and  at  the  end  of  the  week  written  out  by 

direction  and  in  the  presence  of  the  witness,  are  available  as  original 

memoranda. 
Testimony  given  without  objection  cannot,  it  seems,  be  stricken  out  upon 

motion  made  after  the  whole  evidence  is  in. 

THE  action  was  brought  to  recover  for  a  balance  due  for 
work,  labor  and  services,  &c.,  performed  in  1867  and  1868 
by  the  plaintiff,  as  a  shoemaker,  for  defendants,  who  were 
partners,  and  judgment  is  claimed  for  such  balance,  with 
interest  thereon  from  December  12,  1868. 

The  case  was  referred,  by  order  of  the  court,  to  a  referee, 
to  hear  and  determine  the  same. 

The  said  referee,  after  hearing  the  evidence,  &c.,  found  in 
favor  of  the  plaintiff  for  $98.15,  including  interest  on  the 
amount  found  due  the  plaintiff,  from  December  12, 1868,  the 
time  mentioned  in  the  complaint,  besides  costs. 

It  appeared  upon  the  trial  that,  in  1866,  the  plaintiff  com- 
menced work  for  Austin  E.  Baker  (one  of  the  defendants) 


1872.]  OF  THE  STATE  OF  NEW  YORK.  517 


Filkins  ».  Baker. 


and  Benton,  in  their  boot  and  shoe  shop,  at  Marathon,  and 
worked  in  the  same  shop  till  June  28,  1867. 

In  the  meantime  (on  March  1, 1867)  Leonard  T.  Baker,  the 
other  defendant,  had  bought  into  the  firm,  taking  the  credits 
of  the  retiring  partner  and  assuming  his  share  of  the  indebt- 
edness. 

In  pursuance  of  that  arrangement  defendant  Leonard  set- 
tled with  plaintiff  all  accounts  between  plaintiff  and  old  firm 
up  to  January  25, 1867,  and,  finding  the  plaintiff  indebted  up 
to  that  time  in  the  sum  of  $1.84,  charged  the  same  against 
him  on  the  books  of  the  new  firm. 

On  June  29,  1867,  the  plaintiff  commenced  work  for  the 
defendants,  under  a  contract  by  the  day,  as  foreman  and 
cutter,  at  the  agreed  price  of  two  dollars  per  day,  or  twenty 
cents  per  hour,  and  board  himself. 

Several  questions  were  made  upon  the  trial,  which  are  dis- 
cussed in  the  opinion. 

A  judgment  was  entered  on  the  referee's  report,  and  the 
defendant  appealed. 

Benj.  T.  Wright^  for  the  appellant  and  defendants. 

,  for  the  plaintiff  and  respondents. 
Present — MILLER,  P.  J.;  POTTER  and  PARKER,  JJ. 

MILLER,  P.  J.  There  was  no  error  in  the  refusal  of  the 
referee  to  allow  the  witness  (Walter  Torry)  to  answer  the 
question  put  by  the  defendants,  which  was  as  follows :  "  Do 
you  remember  of  other  hands  having  to  do  cutting  and 
measuring  during  working  hours  by  reason  of  plaintiff's 
absence?"  While  the  fact,  that  others  did  cutting  and 
measuring  was  competent,  the  opinion  of  the  witness  as  to 
the  reason  of  the  work  being  done  was  clearly  improper,  at 
least  as  to  others  besides  himself.  He  stated  the  reason  as  to 
himself,  and  this  was  competent,  because  he  knew.  But  as  to 
others,  he  could  not  well  know  the  reason.  Proof  of  the 
plaintiff's  absence,  and  that  the  work  was  done,  would  leave 


51 8  CASES  IN  THE  SUPREME  COURT       [March, 


Filkins  0.  Baker. 


the  inference  to  be  drawn  that  this  was  the  reason ;  and  the 
defendants  might  have  known  that  other  hands  were  employed 
in  consequence  of  the  absence  of  the  plaintiif ;  but  as  to  the 
•vitness,  it  would  be  a  mere  expression  of  opinion,  and,  there- 
fore, was  improper. 

It  was  also  competent,  I  think,  for  the  witneas  (Comstock) 
to  testify  what  evidence  one  of  the  defendants  had  given 
upon  the  trial  before  him  as  a  justice,  by  looking  at  a  copy  of 
his  minutes  to  aid  his  memory.  He  testified  that  he  had 
searched  for  the  original  minutes  and  could  not  find  them ; 
that  he  did  not  know  that  he  had  them ;  that  he  kept  the 
minutes,  intended  to  keep  them  correct,  and  that  the  copy 
was  made  by  himself.  This,  I  think,  showed  the  loss  of  the 
minutes,  and  was  sufficient  to  authorize  the  witness  to  testify 
from  the  copy. 

But  even  if  the  ruling  was  erroneous  it  caused  no  injury, 
as  the  defendant  himself  testified  that  he  did  swear  as  was 
stated  in  the  witness'  answer  to  the  first  question ;  and  the 
answer  to  the  other  question  was  from  his  recollection,  and 
not  from  the  minutes. 

The  referee  properly  refused  to  strike  out  the  testimony  of 
the  plaintiff  as  to  fhe  time  he  worked  as  foreman  and  cutter. 
The  plaintiff  testified  "  that  he  had  an  account  of  his  work ; 
and,  in  swearing  to  it,  he  relied  upon  the  memorandum " 
which  he  produced ;  that  this  was  all  he  had.  He  kept 
another  memorandum  besides  this — the  number  of  hours  he 
worked  each  day  on  pieces  of  paper ;  and  the  one  produced 
was  in  his  wife's  handwriting.  He  figured  the  number  of 
hours  himself,  and  she  set  it  down  as  he  directed  every  Satur- 
day night,  and  he  could  not  give  the  days  and  hours  he 
worked  except  from  this  paper.  No  objection  was  made  to 
this  evidence  at  the  time  it  was  given,  and  the  motion  to 
strike  it  out  was  made  after  the  testimony  was  closed,  upon 
the  ground,  first,  that  it  was  incompetent  and  improper ; 
second,  that  the  memorandum  was  not  an  original  entry,  but 
was  a  copy,  not  made  by  the  witness  nor  properly  proved. 

I  am  inclined  to  think  that  the  memorandum  to  which  the 


1872.]  OF  THE  STATE  OF  NEW  YORK.  519 


Filkins  T.  Baker. 


witness  referred  may  be  regarded  as  an  original  memoran- 
dum, made  at  the  time  by  himself  or  by  his  diection,  which 
is  the  same  thing,  under  the  circumstances,  as  if  he  had  per- 
sonally done  it.  The  testimony  shows  that  the  plaintiff  made 
up  the  amount  of  his  week's  work  from  separate  slips  of  paper, 
from  day  to  day,  which  he  kept ;  that  he  reckoned  them  up 
every  Saturday  night,  and  his  wife  set  them  down  as  he 
directed  in  his  presence  and  under  his  immediate  supervision. 
It  was,  therefore,  really  and  in  point  of  fact,  his  own  memo- 
randum which,  as  he  testified,  he  relied  upon  in  swearing  to 
the  time,  and  which  it  was  entirely  proper  to  refer  to,  for  the 
purpose  of  refreshing  the  recollection  of  the  plaintiff  upon  a 
single  point,  within  the  principle  of  some  of  the  cases  cited. 
(6  N.  Y.,  337 ;  29  N.  Y.,  346.) 

Even  if  there  may  have  been  objections  to  the  testimony 
originally,  as  no  objection  was  made  to  it  when  given  and  the 
defendant  only  moved  to  strike  it  out  after  the  whole  evidence 
was  in,  I  am.  inclined  to  think  that  there  was  a  waiver  of  the 
objection,  and  it  cannot  now  be  successfully  urged.  (Hall  v. 
Earnest,  36  Barb.,  585 ;  Quin  v.  Lloyd,  41  N.  Y.,  349.) 

The  finding  of  the  referee,  that  there  was  an  agreement 
between  the  parties  as  to  the  price  per  diem  to  be  paid  to  the 
plaintiff,  was  not  so  entirely  against  the  weight  of  the  evi- 
dence as  to  authorize  this  court  to  set  aside  the  verdict  for 
that  reason.  True,  the  testimony  was  conflicting,  but  there 
is  no  such  preponderance  in  favor  of  the  defendant  as  to  jus- 
tify a  reversal  of  the  judgment  upon  any  such  ground. 

No  other  objections  are  urged,  and  as  there  was  no  error, 
the  judgment  must  be  affirmed,  with  costs. 


IN   ME  MORI  AM.* 


PEOOEEDINGS 

OF  THE 

COLUMBIA  COUNTY   BAR,   COMMEMORATIVE    OF   THE   DEATH 

or 

JUDGE  HENRY  HOGEBOOM, 

AT  THE  COURT-HOUSE,  IN  THE  ClTY  OF  HUDSON, 
MONDAY,  OCTOBER  14TH,  1872. 


At  an  adjourned  meeting  of  the  bar  of  Columbia  county, 
held  at  the  court-house,  in  the  city  of  Hudson,  N.  Y.,  on  the 
14:th  day  of  October,  1872,  at  three  o'clock,  p.  M.,  called  in 
commemoration  of  the  death  of  Hon.  HENRY  HOGEBOOM,  late 
one  of  the  justices  of  the  Supreme  Court  of  the  State  of  New 
York  ; 

On  motion  of  John  C.  Newkirk,  Hon.  Theodore  Miller, 
presiding  justice  of  the  General  Term  for  the  third  judicial 
department,  was  called  to  the  chair;  and  after  returning 
thanks/ for  the  honor  conferred  upon  him  by  his  selection  as 
presiding  officer,  spoke  as  follows : 

REMARKS  OF  HON.  THEODORE  MILLER. 
I  confess  my  disappointment  at  the  absence  of  t\vo  eminent 
members  of  the  bar,  John  Gaul,  Jr.,  and  William  II.  Tobey, 
Esqs.,  who  were  expected  to  be  present  and  to  participate  in 
these  proceediugs.  Mr.  Gaul  took  an  active  part  at  the  first 
meeting  held  to  take  notice  of  the  decease  of  Judge  HOGE- 
BOOM, and  it  was  then  adjourned  with  a  view  of  securing  the 
attendance  of  Mr.  Tobey  and  some  other  gentlemen  who  were 

•These  proceedings  were  received  too  late  for  insertion  in  vol.5. — REP. 

LANSING — VOL.  VI.         66 


522  ACTION  ON  DECEASE  OF 

absent.  Upon  the  adjourned  day  both  Mr.  Gaul  and  Mr. 
Tobey  were  unable  to  be  present  by  reason  of  indisposition, 
and  on  that  account,  as  well  as  the  absence  of  another  distin- 
guished lawyer,  Mr.  Beal,  who,  I  am  happy  to  say,  is  able  to 
be  with  us  to-day,  it  was  postponed  to  the  present  time. 

It  is  a  matter  of  deep  regret  that  Mr.  Gaul  and  Mr.  Tobey 
are  prevented  by  sickness  from  meeting  with  us  on  this  solemn 
occasion,  and  that  we  are  obliged  to  proceed  in  their  absence. 
As  the  representatives  of  the  legal  profession,  who  for  a  long 
period  have  occupied  commanding  positions  at  the  bar  and 
as  old  and  tried  personal  friends  of  the  deceased,  their  pre- 
sence would  add  much  to  the  interest  of  these  commemorative 
ceremonies,  and  I  am  confident  that  none  more  than  these 
gentlemen  will  deplore  the  unfortunate  circumstances  which 
.deprive  them  of  this  privilege. 

It  is  perhaps  not  inappropriate,  before  assuming  the  duties 
of  presiding  officer,  to  avail  myself  of  the  opportunity  presented 
to  pay  a  tribute  of  respect  to  the  memory  of  the  deceased, 
which  is  due  to  his  high  personal  character  and  eminent  talents, 
as  well  as  to  the  distinguished  position  which  he  has  long  filled 
with  great  ability,  as  one  of  the  justices  of  the  Supreme  Court 
of  this  State. 

The  decease  of  Judge  HOGEBOOM  has  filled  many  hearts  with 
profound  sorrow.  It  has  been  for  a  long  time  anticipated  by 
his  friends,  and  its  slow  and  certain  approach  cast  a  continu- 
ous gloom  over  those  who  knew  him  well,  and  appreciated 
his  many  sterling  qualities  and  excellent  traits  of  character, 
and  who  could  not  but  realize  that  his  earthly  career  was  fast 
drawing  to  a  close. 

It  is  indeed  a  sad  and  sorrowful  event  to  witness  those  with 
whom  for  many  years  we  have  had  intimate  and  friendly  rela- 
tions, gradually  decay  and  depart  from  among  us.  It  sunders 
another  link  in  the  chain  which  binds  us  to  earth  and  forcibly 
reminds  us  that  at  most  but  a  few  years  remain  to  those  who 
survive. 

The  name  of  HENRY  HOGEBOOM  is  associated  with  my  earli- 
est recollections  of  the  bar  of  this  county.  I  remember  our 
departed  friend,  when  I  was  a  law  student  in  this  city,  as  one 
then  in  thy  d.nvn  of  early  manhood,  who  had  entered  upon  a 


MR.  JUSTICE  HOGEBOOM.  523 

i . 

professional  career  full  of  high  promise  and  bright  expecta- 
tions, which  were  more  than  realized  by  his  subsequent  bril- 
liant success  as  a  lawyer  and  jurist. 

Even  at  this  early  period  of  his  life,  Judge  HOGEBOOM  was 
distinguished  for  a  maturity  of  judgment  and  a  dignity  of 
character  far  beyond  his  years.  And  while  many,  by  slow 
degrees  and  measured  steps,  assume  the  weightier  responsi- 
bilities and  reach  the  higher  walks  of  the  legal  profession,  he 
at  once  and  on  the  start  grappled  with  the  most  difficult  prob- 
lems in  the  law  and  evinced  the  highest  order  of  ability. 
He  took  a  position  in  the  front  ranks.  He  came  upon  the 
'stage  about  the  time  when  Ambrose  L.  Jordan,  Campbell 
Bushnell,  Killian  Miller,  Joseph  D.  Monell  and  John  W. 
Edmonds,  of  that  generation  of  lawyers,  now  almost  extinct, 
were  at  the  full  zenith  of  their  fame,  and  with  them  he  entered 
upon  thef  legal  contests  of  the  day  with  a  zeal,  vigor  and  abil- 
ity whicn  soon  ranked  him  as  fully  their  equal,  and  which 
placed  him  in  prominent  position  among  the  members  of  the 
bar  of  the  State. 

He  was  a  fine  scholar,  well  versed  in  the  classics,  possessed 
of  a  finished  education  and  great  intellectual  ability.  His 
mind  was  comprehensive  and  broad,  capable  of  grasping  any 
subject,  and  gifted  with  resources  equal  to  any  emergency. 
His  antagonists  were  men  of  extraordinary  talent,  and  the 
trial  of  a  cause  in  those  days  was  an  intellectual  treat,  a  gladi- 
atorial combat  of  mind  against  mind,  which  elicited  all  the 
powers  and  capacities  of  the  man,  and  all  the  talents,  learning 
and  eloquence  of  the  true  lawyer  and  the  advocate. 

This  period  may  perhaps  be  characterized  as  a  brilliant  era 
in  the  history  of  the  profession  in  this  county,  when  elo- 
quence and  debate  were  permitted  to  have  full  scope,  without 
the  restraints  which  increasing  business  and  modern  utilita- 
rianism has  imposed.  There  were  jio  rules  restricting  the 
time  for  addressing  a  court  or  a  jury  or  imposing  any  barriers 
to  a  free,  full  and  extended  discussion. 

Surrounded  by  men  such  as  I  have  described  and  in  a  school 
like  this,  amid  the  clashing  of  great  intellects,  striving  for  the 
mastery,  Judge  HOGEBOOM  commenced  his  professional  life 


524  ACTION  ON  DECEASE  OF 

and  developed  the  strongest  elements  of  his  talents,  character 
and  legal  ability. 

When  engaged  in  professional  conflicts  he  was  calm,  cool 
and  collected.  His  manner  was  dignified  and  commanding, 
and  his  style  of  oratory  was  forcible  and  of  a  high  class  of 
forensic  eloquence.  He  was  also  as  strong  and  convincing  in 
argument  as  he  was  eloquent,  easy  and  happy  in  speech.  He 
more  frequently  carried  conviction  by  the  force  of  his  logic, 
and  soon  won  for  himself  a  reputation  as  one  of  the  ablest 
lawyers  of  the  State,  enjoying  a  large  and  extensive  practice 
in  this  and  the  counties  in  the  vicinity. 

There  was  one  remarkable  and  peculiar  characteristic  in 
his  style  of  addressing  both  court  and  jury,  as  well  as  his 
charges  to  a  jury,  as  a  judicial  officer,  which  is  worthy  of  par- 
ticular attention  ;  and  that  was  his  fine,  elegant  and  rich  flow 
of  language.  His  words  rolled  out  with  an  exuberance  and 
a  fluency  which  never  failed,  and  were  so  apt  and  appropri- 
ate, so  well  adapted  to  the  purpose  and  the  occasion,  that  it 
appeared  difficult  to  im-prove  their  character,  or  to  add  to 
their  strength,  force  or  effect.  I  have  had  occasion  frequently 
to  remark  that  he  employed  as  pure  Saxon-English,  and  pos- 
sessed as  fine  command  of  language,  as  any  person  I  ever 
heard  at  the  bar  or  on  the  bench. 

His  extemporaneous  and  off-hand  efforts  were  at  all  times 
as  grammatically  accurate  as  if  they  had  been  prepared  after 
careful  study  before  delivery ;  and,  in  purity  of  diction  and 
elegance  of  expression,  I  think  he  approached  as  near  to  the 
style  of  Daniel  Webster  as  any  other  jurist  within  the  range 
of  my  acquaintance.  Judge  HOGEBOOM  was  a  man  of  great 
industry,  and,  at  times,  a  hard  student.  His  cases  were 
always  well  prepared  while  practicing  at  the  bar.  Without 
this  characteristic  no  lawyer  can  expect  to  attain  any  great 
distinction  or  success.'  This  habit  followed  him  upon  hig 
elevation  to  the  bench  ;  and  here,  as  elsewhere,  he  brought  to 
his  aid  the  garnered  treasures  of  much  toil  and  labor. 

I  have  reason  to  know  that,  while  engaged  in  performing 
the  arduous  duties  of  his  judicial  position  (which,  under  ordi- 
nary circumstances,  are  full  enough  for  the  most  vigorous  and 
strongest  of  men),  he,  at  the  same  time,  in  addition,  heard 


MR.  JUSTICE  HOGEBOOM.  525 

and  decided  one  of  the  most  difficult,  extraordinary  and 
heaviest  cases  ever  tried  in  this  State.  This,  from  its  great 
magnitude  and  the  vast  interests  involved,  necessarily  occu- 
pied a  considerable  portion  of  his  time  and  attention,  extend- 
ing over  a  period  of  about  two  years,  and,  I  have  alwajs 
entertained  a  belief,  contributed  somewhat  to  the  prostration 
of  his  previous  good  health  and  apparently  vigorous  constitu- 
tion. 

Judge  HOGEBOOM'S  mind  was  eminently  of  a  judicial  cast ; 
and  here,  in  this  court-house,  where  he  has  so  frequently  pre- 
sided with  so  much  dignity  and  acceptance,  and  where  he 
was  so  well  known  and  appreciated,  it  is  scarcely  necessary  to 
speak  of  the  ability  and  integrity  and  of  the  faithful  and  satis- 
factory manner  in  which  he  discharged  the  duties  of  his 
official  position. 

At  an  early  period  of  his  life,  when  comparatively  a  young 
man,  as  one  of  the  judges  of  the  Court  of  Common  Pleas  of 
this  county,  he  evinced  the  highest  capacity  for  a  judicial 
station. 

As  one  of  the  justices  of  the  Supreme  Couit  cf  this  State 
for  the  past  fifteen  years,  he  has  ranked  among  the  first 
judges  in  the  land.  At  the  Circuit  he  was  patient,  consider- 
ate, ready  and  prompt  in  disposing  of  business  with  great 
facility  and  entire  impartiality,  and  to  the  satisfaction  of  par- 
ties and  counsel.  Comprehending  the  intricacies  of  a  difficult 
case,  he  presented  them  with  great  clearness,  so  that  any 
ordinary  mind  could  understand  the  questions  to  be  deter- 
mined. His  charges  were  remarkable  in  this  respect,  as  well 
as  for  the  beauty  and  accuracy  of  language  employed.  He 
was,  in  fact,  a  model  Circuit  judge.  But  whether  at  the  Cir- 
cuit, Special  or  General  Term,  Judge  HOQEBOOM  manifested 
a  thorough  and  complete  knowledge  of  legal  principles,  and 
the  highest  order  of  legal  and  judicial  talent.  He  composed 
with  great  facility ;  and  his  opinions  in  the  published  reports 
are  not  only  distinguished  by  an  elegance  of  style,  but  bear 
ample  testimony  of  his  learning,  and  of  his  ability  and  power 
as  a  judicial  writer.  He  had  a  high  and  proper  appreciation 
of  the  dignity  of  the  judicial  office,  and  maintained  it  at  aE 
times  and  upon  all  occasions.  As  a  jurist  he  had  few  if  any 


526  ACTION  ON  DECEASE  OF 

superiors.  He  was  an  upright  and  just  judge,  and  the  bench 
of  this  State  has  experienced  a  great  and  irreparable  loss  by 
his  decease. 

For  nearly  eleven  years  I  have  had  the  honor  of  being 
associated  with  him,  more  or  less,  as  one  of  the  justices  of 
the  Supreme  Court  in  this  judicial  district;  and,  although  in 
our  official  relations  we  have  repeatedly  had  occasion  to  differ 
upon  questions  to  be  decided,  I  am  happy  to  say  that  at  no 
time  has  any  conflict  of  views  arisen  which  has  disturbed  our 
harmonious,  official  and  personal  intercourse,  or  created  any 
unpleasant  feeling  between  us.  He  was  an  honorable,  high- 
minded  gentleman  of  the  old  school,  in  every  sense ;  a  fine 
specimen  of  the  Holland  Dutch  from  which  he  was  descended, 
and  always  acted  upon  the  principle  that  an  honest  difference 
of  opinion  was  to  be  tolerated. 

Judge  HOGEBOOM  occupied  the  highest  position,  as  a  citizen, 
for  character  and  integrity,  and  was  honored  and  beloved  in 
the  private  relations  of  life.  He  has  left  a  reputation  of 
which  any  man  might  be  proud,  which  is  a  rich  legacy  to  his 
children  and  descendants. 

His  career  as  a  public  man  and  a  judicial  officer  reflected 
the  highest  credit  upon  his  native  county,  with  whose  citizens 
he  was  always  a  favorite,  and  who,  with  a  tenacity  and  zeal 
which  is  remarkable,  stand  firmly  by  their  chosen  sons,  whom 
they  delight  to  honor,  and  in  whose  success  they  feel  an 
honest  pride. 

He  has  gone  to  his  final  rest  crowned  with  honors,  in  full 
possession  of  his  intellect,  and  respected  by  the  entire  com- 
munity. And  it  may  perhaps  be  said  of  him,  as  of  others 
who  have  trod  the  rugged  path  of  professional  life  and  attained 
high  distinction,  that  the  work  which  engaged  his  attention 
bore  too  heavily  upon  him.  But  it  is  a  satisfaction  to  realize 
that  he  has  departed  from  the  field  of  his  labors  with  no  duty 
undischarged,  leaving  to  his  brethren  of  the  bar  a  professional 
and  judicial  reputation  which  points  to  his  history  as  an 
example  worthy  of  imitation  by  all  who  are  following  the 
same  road  to  eminence  and  success. 

His  name  will  occupy  a  place  among  the  distinguished 
lawj'ers  and  statesmen  who  have  conferred  distinction  upon 


MR.  JUSTICE  HOGEBOOM.  527 

this  county,  and  given  to  its  bar  almost  a  world-wide  renown, 
not  surpassed  by  that  of  any  other  locality  in  the  country.  It 
will  stand  side  by  side  with  those  of  the  illustrious  men  whose 
memories  we  all  cherish ;  and  while  Van  Schaack,  Van  Buren, 
Van  Ness,  Williams  and  Spencer  will  be  remembered  as  the 
chosen  representatives  of  a  generation  long  since  passed  away, 
and  Killian  Miller,  Monell,  Bushnell  and  Jordan  as  those  of  a 
later  period,  HENRY  HOGEBOOM  will  be  considered  as  no 
unworthy  successor  to  the  fame  of  these  distinguished  and 
talented  members  of  the  bar — those  noble  specimens  of  our 
race. 

On  motion  of  Hon.  Darius  Peck,  Frank  B.  Chace  waa 
appointed  secretary. 

On  motion  of  Hon.  J.  C.  Newkirk,  it  was  resolved  that  a 
committee  of  five  be  appointed  by  the  chair  to  draft  and 
report  suitable  and  appropriate  resolutions  for  the  occasion. 

The  chair  appointed  the  following  named  gentlemen  as 
such  committee :  Hons.  J.  C.  Newkirk,  C.  L.  Beale,  R.  B. 
Monell,  R.  E.  Andrews  and  John  Cadman. 

The  committee,  through  Hon.  J.  C.  Newkirk,  reported  the 
following,  which  were  unanimously  adopted : 

Whereas,  Almighty  God,  in  his  wise  but  inscrutable  pro- 
vidence, has  removed  from  the  scene  of  his  labors  and  tri- 
umphs our  friend  and  associate,  the  Honorable  HENRY  HOGE- 
BOOM, then  one  of  the  justices  of  the  Supreme  Court  of  the 
State  of  New  York,  we,  the  members  of  the  bar  of  Columbia 
county,  of  which  he  was  so  long  an  ornament,  while  we  bow 
with  submission  and  hope  to  the  afflictive  dispensation,  desire 
to  leave  upon  record  some  enduring  manifestation  of  our  love, 
regard  and  reverence ;  therefore, 

Resolved,  That  in  the  purity,  blamelessness  and  dignity  of 
his  life  ;  in  the  faithful  discharge  of  the  professional,  official 
and  other  public  duties  from  time  to  time  imposed  upon  him ; 
in  the  legal  ability  and  integrity  always  displayed  by  him  as 
a  member  of  the  bar;  in  the  eloquence  and  learning  of  his 
forensic  and  professional  efforts ;  in  the  soundness  of  his 
judgment  and  the  wisdom  of  his  counsel,  he  was  entitled  to 
and  received  the  unqualified  confidence,  admiration  and 


528  ACTION  ON  DECEASE  OF 

respect  of  his  professional  brethren  and  of  the  community  at 
large. 

Resolved,  That  in  his  death  not  only  have  his  professional 
brethren,  and  the  community  in  which  he  lived,  sustained  a 
great  and  heartfelt  loss,  but  the  State  at  large  has  been 
deprived  of  one  of  her  best  citizens,  her  jurisprudence  of  one 
of  its  strongest  pillars,  the  hand  which  held  with  firm  and 
equal  poise  the  scales  from  which  justice  was  meted  out  to 
her  citizens  has  been  stricken  down  and  withdrawn,  and  a 
disciplined  and  massive  intellect,  with  its  strong,  native 
powers  and  stores  of  experience,  has  ceased  to  yield  its  bene- 
ficent influence  in  the  administration  of  justice  in  this  State. 

Resolved^  That  as  a  citizen  he  was  ever  alive  to  the  call  of 
duty,  and  in  all  the  relations  of  life,  as  a  husband,  a  father 
and  friend,  he  has  left  behind  him  a  bright  example  of  suc- 
cess, devotion  and  love,  and  a  name  without  reproach,  and  in 
the  cordial  surrender  of  his  heart  to  the  religion  of  the  cross, 
he  has  left  to  his  family  and  the  world  an  example  wide  in 
its  influence  and  worthy  of  all  emulation. 

Resolved^  That  we  deeply  sympathize  with  the  family  of 
the  deceased  in  their  great  sorrow  and  loss,  and  that  a  copy 
of  these  resolutions,  properly  attested  by  the  officers  of  this 
meeting,  be  furnished  them  as  a  mark  of  respect  for  his 
memory,  and  of  our  condolence  with  them  in  their  grief. 

Resolved^  That  a  copy  of  these  resolutions  be  published  in 
the  papers  of  the  city  and  county. 

Resolved)  That  the  chairman  of  the  meeting  present  these 
resolutions  to  the  Circuit  Court,  now  in  session  in  this 
county,  with  a  request  that  they  be  entered  upon  the  minutes 
of  the  court. 

Pending  the  motion  of  R.  E.  Andrews,  Esq.,  that  the  reso- 
lutions be  adopted,  speeches  were  made  by  members  of  the 
bar  present,  as  follows : 

REMARKS  OF  HON.  DARIUS  PECK. 

1  desire  to  offer  my  humble  tribute  to  the  memory  of  the 
deceaaed.  "We  came  to  the  bar  at  about  the  same  time,  and 
my  acquaintance  with  him  is  of  about  forty  years'  standing. 
Though  familiar  with  the  details  of  his  life  and  history,  they 


MR.  JUSTICE  HOGEBOOM.  529 

have  already  been  so  well  and  fully  stated  in  the  public  prints 
that  an  attempt,  on  my  part,  now  to  portray  them  seems  to 
be  a  work  of  supererogation. 

He  was  known  and  respected  here,  as  well  as  throughout 
the  State,  for  his  purity  of  character,  his  native  vigor  of  intel- 
lect, his  ability  as  a  lawyer,  and  his  many  endowments  and 
accomplishments  as  a  judge  of  our  highest  courts.  In  the 
discharge  of  his  judicial  duties  he  justly  earned  the  distinction 
of  an  upright  judge.  Always  patient  and  courteous,  and 
possessing  in  a  high  degree  the  gift  of  language,  which  he 
assiduously  cultivated,  and  a  fine  delivery,  he  had  few  com- 
peers as  a  Circuit  judge.  In  his  exclusive  devotion  to  pro- 
fessional and  judicial  duty,  and  in  his  many  virtues  as  a  man 
and  citizen,  he  has  bequeathed  to  us,  and  to  his  friends  and 
family,  the  invaluable  legacy  of  a  good  example  of  which  we 
are  all  justly  proud,  and  which  is  eminently  worthy  of  imita- 
tion. 

REMARKS  OF  HON.  J.  C.  NEWKIBK. 

ME.  CHAIRMAN. — Having  made  some  remarks  on  moving 
the  court  on  the  first  day  of  the  session,  to  adjourn  as  a  mark 
of  respect  to  Judge  HOGEBOOM,  I  had  expected  to  have 
remained  silent  on  this  occasion  and  listen  to  others.  But 
assembled  here  with  the  members  of  the  bar  of  Columbia 
county,  to  express  our  appreciation  of  the  character  of  our 
deceased  friend,  I  am  unwilling  to  let  the  occasion  pass  with- 
out making  a  few  remarks. 

My  acquaintance  with  this  distinguished  man  was  a  some- 
what familiar  one,  if  I  may  call  it  by  no  name  implying 
nearer  relations  than  mere  acquaintance.  It  is  a  melancholy, 
although  in  some  respects  a  somewhat  pleasing  duty,  which 
we  are  assembled  to  discharge,  to  express  our  feelings  and 
show  our  respect  for  the  character  of  Judge  HOGEBOOM. 

Few  men  ever  so  well  deserved  all  the  marks  of  respect 
that  can  be  shown  on  such  an  occasion,  whether  we  consider 
his  character  as  a  lawyer,  a  judge,  a  citizen,  a  neighbor  or  a 
friend. 

Judge  HOGEBOOM  for  a  long  time  occupied  a  prominent, 

LANSING  — VOL.  VI.        67 


530  ACTION  ON  DECEASE  OF 

and  probably  the  first  position  as  a  practitioner,  at  the  bar  of 
Columbia  county. 

I  became  acquainted  with  him  over  a  quarter  of  a  century 
ago,  and  during  the  whole  of  the  time  that  has  intervened  he 
continued  to  hold  the  very  first  position,  first  at  the  bar  and 
then  upon  the  bench. 

I  practiced  with  him  in  the  old  Court  of  Chancery,  when 
that  court  had  an  existence,  and  under  the  old  organization 
of  the  Supreme  Court,  and  also  after  the  new  organization  of 
the  judiciary  of  the  State,  and  it  can  truly  be  said  that  Judge 
HOGEBOOM  was  equal  to  every  occasion  in  which  he  was  called 
upon  to  act  in  his  profession. 

In  his  intercourse  with  his  professional  brethren  he  was 
always  courteous,  social  and  dignified. 

Judge  HOGEBOOM  had  a  high  appreciation  of  the  dignity  of 
the  legal  profession.  He  was  honorable  in  the  discharge  of 
all  his  duties,  he  was  faithful  and  careful  in  the  preparation 
of  his  cases.  In  his  trial  of  causes  at  the  Circuit,  when  at  the 
bar,  he  made  no  use  of  any  of  the  tricks  to  which  some  resort 
in  the  profession.  He  sought  only  to  gain  success  by  a  fair  and 
strong  presentation  of  the  facts  in  his  favor,  and  we  can  all 
testify  how  successful  he  was  in  that  respect. 

When  Judge  HOGEBOOM  was  called  to  the  bench  he  was 
engaged  in  a  lucrative  practice,  which  he  relinquished  to 
assume  the  duties  of  a  justice  of  the  Supreme  Court  of  the 
State  of  New  York,  and  from  that  time  until  the  time  of  his 
death,  a  period  of  fifteen  years,  he  not  only  discharged  faith- 
fully and  honestly  the  duties  of  this  high  position,  but  he 
added  to  its  honor  and  reputation. 

No  one,  to  my  knowledge,  has  ever  whispered  a  suspicion 
as  to  the  integrity  and  fairness  of  HENRY  HOGEBOOM,  as  a 
judge.  As  a  judge  he  established  a  reputation  above  suspi- 
cion. 

In  his  trial  of  causes,  as  a  judge  at  the  Circuit,  he  was  pecu 
liarly  happy ;  he  at  once  seemed  to  understand  the  true  issues 
involved,  and  kept  counsel  from  wandering  off  with  irrele- 
vant matters.  In  his  charges  to  juries,  his  arrangement  and 
presentation  of  the  facts  bearing  upon  the  issues  were  remark- 
able for  their  clearness,  and  were  BO  impartially  given  that  it 


MR.  JUSTICE  HOGEBOOM.  531 

was  impossible  for  the  jury  or  the  parties  to  gather  upon 
which  side  his  opinion  was.  He  believed  that  the  ques- 
tions of  fact- in  a  case  should  be  left  entirely  to  the  jury,  and 
that  he  had  no  right  to  interfere  with  their  prerogative. 
Upon  the  law  of  the  case,  there  was  no  doubt  what  his  opin- 
ion was,  for  he  stated  it  with  wonderful  clearness,  direct- 
ness and  force.  In  regard  to  the  discharge  of  the  duties  of  a 
judge  in  lane,  his  published  opinions  show  that  he  had  a 
remarkable  power  in  expressing  his  views  clearly  and  logic- 
ally, and  his  reported  opinions  are  models  of  judicial  learn- 
ing and  excellence.  By  his  industry,  learning  and  powerful 
intellect,  he  at  once  took  and  maintained  a  high  position 
among  the  judges  of  this  State.  His  reputation  as  a  judge  is 
coextensive  with  the  State.  But  Judge  HOGEBOOM'S  great- 
est reputation,  is,  that  he  was  a  pure,  upright  and  honest 
judge. 

But  we,  of  this,  the  native  county  of  Judge  HOGEBOOM, 
feel  that  we  have  met  with  a  great  loss  in  his  death,  not  only 
as  a  lawyer  and  judge,  but  also  as  a  fellow-citizen  and  neigh- 
bor. He  was  affable  and  kind  in  all  his  social  relations  in 
life, — a  cultivated  and  refined  gentleman. 

In  all  public  matters  relating  to  the  interest  of  the  city  in 
which  lie  resided,  although  he  never  took  a  very  active  part, 
his  advice  was  often  sought  and  uniformly  cheerfully  given, 
and  proved  to  be  eminently  judicious.  My  intercourse  with 
him  in  social  life  has  been  very  pleasant. 

If  I  may  be  permitted  to  speak  of  such  a  matter  here,  I 
would  say  that  for  more  than  twenty-five  years  prior  to  the 
time  of  his  decease  we  have  attended  the  same  church,  and 
worshipped  at  the  same  altar.  He  was  a  regular  attendant 
of  the  Reformed  Church  of  this  city,  and  always  to  be  seen, 
in  his  seat  in  the  church,  on  the  Sabbath,  unless  prevented  by 
sickness  or  absent  from  the  city.  He  contributed  liberally  to 
the  support  of  the  Gospel,  and  the  Reformed  Church  of  this 
city  has  received  many  benefits  from  him  in  its  tem- 
poral affairs.  This  church  will  mourn  his  loss.  I  remember 
that  on  several  occasions  his  counsel  and  advice  was  sought  by 
the  church ;  it  was  freely  given  and  followed,  and  proved 
beneficial  to  the  church. 


532  ACTION  ON  DECEASE  OF 

It  is  a  sad  but  pleasant  duty  to  stand  here  and  testify,  as  I 
have  endeavored  to  do,  to  my  appreciation  of  the  character 
of  Judge  HOGEBOOM,  as  a  learned  and  profound  lawyer,  an 
able  and  honest  judge,  a  good  citizen,  a  kind  neighbor  and 
a  sincere  friend. 

REMARKS  OP  C.  P.  COLLIEB,  ESQ. 

ME.  CHAIRMAN. — It  is  fit  and  proper  that  I  should  speak 
of  Judge  HOGEBOOM  upon  this  occasion.  For  six  years,  from 
1848  to  1854,  he  and  I  were  associated  as  copartners  in  the 
practice  of  the  law,  in  this  city.  Our  business  relations  were 
always  pleasant,  and  the  bond  of  good  feeling  that  existed 
between  us  while  partners,  was  not  ruptured  by  the  dissolu- 
tion of  the  copartnership,  but  remained  unbroken,  down  to 
the  time  of  his  death. 

It  is  a  mournful  pleasure  to  pay  my  tribute  of  respect  to  the 
deceased.  I  have  known  him  in  the  pursuits  of  professional 
life,  on  the  bench,  and  in  social  hours,  and,  in  all,  I  learned  to 
respect,  admire  and  esteem  him. 

Judge  HOGEBOOM  may  be  spoken  of,  with  truth,  as  having 
been  a  good  and  affectionate  husband,  a  kind  and  indulgent 
parent,  a  pure  and  upright  lawyer,  judge  and  citizen.  He 
had  that  learning,  that  moral  excellence,  and  that  sound  judg- 
ment, that  give  pre-eminence,  and  invite  the  encomiums 
of  all. 

If  the  profession  is,  as  one  has  said,  like  a  forest,  with  here 
and  there  a  tall  tree  towering  above  those  of  lesser  growth, 
then  was  Judge  HOGEBOOM  a  IToge-boom  indeed — a  high  tree, 
as  the  name  signifies,  in  the  language  of  his  fathers. 

Judge  HOGEBOOM  possessed,  in  a  great  degree,  all  those 
characteristics  that  distinguish  a  true  lawyer,  and  was  pecu- 
liarly fitted  for  the  bench,  which  he  so  ably  filled  for  many 
years,  and  down  to  the  time  of  his  death.  Endowed  with 
rare  intellectual  gifts  and  a  cultivated  taste,  his  mind  was 
stored  with  that  knowledge  and  learning  that  so  well  quali- 
fied him  for  every  position  in  life.  His  name  will  be  handed 
down  to  posterity  as  that  of  a  faithful  lawyer,  an  able  advo- 
cate and  an  honest  judge,  while  his  labors  will  live  in  hia 
works,  and  will  not  cease  to  operate  upon  the  minds  of  men 
until  the  course  of  time  is  ended 


MR.  JUSTICE  HOGEBOOM.  533 

REMARKS  OF  JOHN  Y.  WHITBECK,  ESQ. 

It  is,  perhaps,  most  fitting  that  upon  this  sad  occasion  the 
elder  members  of  our  brotherhood  should  engross  our  atten- 
tion in  recalling  the  greatness  of  him  who  is  gone,  and  extol- 
ling the  purity  of  his  public  and  private  life.  Most  fitting, 
because  some  of  them  were  his  contemporaries,  and  are  quali- 
fied from  long  observation  to  speak  accurately  as  well  as  feel- 
ingly of  the  many  virtues  of  the  deceased.  Still,  I  would  be 
doing  violence  to  my  inclinations  should  I  permit  this  occa- 
sion to  pass  without  adding  my  tribute  of  grief  at  our  loss,  and 
feeble  voice  in  praise  of  the  many  excellences  of  our  departed 
friend  and  professional  brother. 

Judge  HOGEBOOM  was  indeed  a  man  upon  whom  nature 
had  lavished  many  of  her  choicest  gifts.  He  carried  in  his 
very  form  and  stature  the  grace  and  stateliness  which  have 
marked  so  many-  of  the  distinguished  men  of  the  earth.  Of 
a  most  commanding  presence,  and  lofty  yet  easy  dignity  of 
demeanor,  he  impressed  every  one  who  looked  upon  him  with 
the  conviction  that  he  was  in  the  presence  of  no  ordinary 
man.  To  his  grace  and  stateliness  of  manner,  he  added  a 
depth  and  strength  of  mind  that  showed  the  casket  to  be  in 
keeping  with  the  jewels  which  it  bore. 

It  has  been  my  choice  privilege  for  some  years  to  be  on 
terms  of  somewhat  close  friendship  with  Judge  HOGEBOOM, 
and  frequently  to  enjoy  his  society  both  at  the  fireside  and  at 
table,  under  his  own  hospitable  roof;  and  upon  all  of  these 
occasions  I  never  left  him  without  carrying  with  me  some  new 
and  lasting  impression  of  his  goodness  of  heart  and  greatness 
of  mind.  In  social  life  he  was  an  ornament  to  society,  digni- 
iied,  courteous,  generous. 

But  in  looking  back  upon  him,  he  seems  to  me  to  loom  up 
particularly  as  one  of  the  giant  intellects  of  our  profession. 
His  career  on  the  bench  during  the  past  fourteen  or  fifteen 
years  has  demonstrated  him  to  the  people  of  the  State  as  one 
of  the  ablest  jurists  of  the  age.  He  evinced,  in  the  perform- 
ance of  his  laborious  and  important  duties  as  a  judge,  a  most 
profound  knowledge  of  the  law,  which,  in  his  charges  to  the 
fury,  or  in  his  written  opinions,  was  always  coupled  with  a 


534  ACTION  ON  DECEASE  OF 

most  complete  and  remarkable  control  of  language  precisely 
fitted  to  convey  his  meaning.  He  possessed  also  that  method 
of  mind,  and  clearness  of  mental  vision,  which  enabled  him, 
particularly  at  the  Circuit,  and  on  the  spur  of  the  moment  as 
it  were,  to  grapple  with  the  most  intricate  questions,  and 
brushing  aside  the  cobwebs  and  technicalities  of  a  case  to  lay 
hold  and  dispose  of  the  vital  questions  involved.  His  charges 
to  the  jury  were  brief,  pointed,  able,  and  always  master  pieces 
of  diction  and  reasoning,  and  must  have  often  proved  to  the 
confused  and  varying  minds  of  a  jury  a  most  welcome  aid 
and  guide.  My  brothers,  this  brilliant  light  in  our  profession 
has  been  suddenly  extingushed,  this  master  mind,  with  all  its 
wealth  of  acquisition,  with  all  its  accumulation  of  legal 
knowledge,  with  all  its  stores  of  law's  subtleties  and  mysteries, 
has  been  removed  from  us.  It  is  in  this  sense  especially  that 
this  community  and  the  State  have,  in  the  death  of  Judge 
HOGEBOOM,  been  called  to  meet  a  grievous  loss.  But  what  is 
our  loss  is  doubtless  his  gain,  for  if  our  Christianity  teaches 
us  anything,  it  is,  that  the  man  who  cultivates  the  noblest  of 
God-given  faculties,  and  goes  through  a  long  life  of  public 
usefulness  with  no  stain  or  suspicion  of  reproach  upon  it, 
must  enjoy  his  reward  at  the  last. 

REMAKES  or  HON.  JOHN  E.  LONGLEY. 
Mr.  CHAIRMAN  : 

"Lives  of  great  men  all  remind  us 
We  can  make  our  lives  sublime, 
And,  departing,  leave  behind  us 

Footprints  on  the  sands  of  time. 
"  Footprints,  that  perhaps  another, 
Sailing  o'er  life's  solemn  main — 
A  forlorn  and  shipwreck'd  brother — 
Seeing,  shall  take  heart  again." 

In  this  presence,  sir,  and  amid  these  surroundings — with  the 
sable  emblems  of  funeral  grief  deepening  the  dark  shadows 
of  the  real  gloom  that  overpowers  us,  and  the  memories  of 
the  distinguished  dead  crowding  in  upon  the  sacredness  of  this 
solemn  hour,  I  feel  that  it  would  better  become  me,  as  one  of 
the  humblest  of  his  disciples,  to  retain  my  seat,  and  to  weep 
in  silence  over  the  bier  of  the  departed. 


MR.  JUSTICE  HOGEBOOM.  585 

But  when  I  recollect  that,  twenty-three  years  ago  this  very 
month,  I  stood,  a  mere  stripling,  at  the  door  of  Judge  HOGE- 
BOOM'S  office,  and  was  received  by  him  as  his  pupil,  and  he 
became  my  preceptor — how  many  pleasant  things  he  said 
and  did — how,  four  years  later,  when  I  presented  myself  at 
the  General  Term  of  the  Supreme  Court,  as  an  applicant  for 
admission  to  the  bar,  and  he,  having  been  appointed  the  sole 
examiner  of  candidates,  certified  to  what,  in  the  kindness  of 
his  heart,  he  was  pleased  to  consider  the  sufficiency  of  my 
qualifications,  and  with  his  own  friendly  hand  swung  open  the 
gate  of  the  temple,  and  invited  me  to  enter — how,  through 
all  the  years  succeeding,  he  remained  my  steadfast  friend,  and 
I  his  warm  admirer,  I  feel  myself  compelled  to  contribute 
some  little  twig  or  leaflet  of  personal  affection  for  him,  as  a 
man,  to  the  magnificent  wreath  which  crowns  his  reputation 
as  an  able  and  an  upright  judge. 

I  knew  him  well  in  the  earlier,  and  perhaps  happier  period 
of  his  life,  when  the  little  circle  of  his  family  was  rounded 
and  complete,  and  when  the  seeming  sternness  of  the  counselor 
and  advocate  was  softened  down  into  the  tenderness  of  a  kind 
husband  and  indulgent  father. 

And  if  this  real  tenderness  of  spirit  did  not  always  manifest 
itself  to  the  outer  world,  if  at  any  time  his  fellow-men  have 
deemed  him  lacking  in  that  warmth  of  heart,  that  inward 
glow  of  sympathy  and  feeling,  which  lavishes  itself  unasked 
for  and  unsought,  and  which  goes  out  spontaneously  toward 
everybody  and  everything,  it  was  because  the  native  dignity 
of  his  manners  repressed  it,  and  the  exalted  position  which  he 
so  long  occupied  prevented  its  public  exhibition. 

One  must  first  stand  where  he  stood,  upon  the  dizzy  height 
of  fame,  before  he  can  comprehend  or  appreciate  the  require- 
ments and  the  incidents  of  the  position. 

"  He  who  ascends  to  mountain  tops,  shall  find 

Their  loftiest  peaks  most  wrapt  in  clouds  and  snow  ; 
He  who  surpasses  or  subdues  mankind, 
Must  look  down  on  the  hate  of  those  below. 

"  Tho'  far  above,  the  sun  of  glory  glow, 

And  far  beneath,  the  earth  and  ocean  spread, — 
Round  him  are  icy  rocks,  and  loudly  blow 
Contending  tempests  on  his  naked  head." 


53  J  ACTION  ON  DECEASE  OF 

Judge  HOGEBOOM'S  loves  and  affections  ever  shone  mildly 
and  sweetly,  like  the  moon,  and  steady  and .  constant  as  the 
stars ;  and  although  in  the  broad  glare  of  day  they  paled  into 
partial  dimness  before  the  dazzling  sunburst  of  his  prodigious 
intellect,  yet  after  all,  they  burned,  and  glowed  and  sparkled 
still. 

To  this  inner,  better,  holier  personality  of  our  lamented 
friend  and  brother,  I  dedicate  this  feeble  offering  of  the  heart. 

For  what  he  achieved  in  the  realm  of  what  men  call  fame, 
I  honor  him ;  for  what  he  was  to  the  world  at  large,  I  admire 
him ;  but  for  what  he  has  been  to  me,  who  needed  such  a 
friend,  1  revere  his  memory  and  weep  that  he  is  gone. 

And  now,  ye  blest  and  heavenly  shades  of  the  departed, 
vouchsafe  to  us  some  measure  of  the  goodness  and  greatness 
in  which  he  abounded,  and  grant  that  we,  who  are  left  behind, 
may  emulate  the  virtues  which  he  practiced  while  here,  and 
that  in  the  great  hereafter  we  may  be  permitted  to  share  with 
him  in  the  glories  of  the  ransomed  and  the  just. 

REMARKS  OF  K.  E.  ANDREWS,  ESQ. 

Mr.  CHAIRMAN  AND  GENTLEMEN. — I  had  been  intimately 
acquainted  with  Judge  HOGEBOOM,  as  advocate  and  judge,  for 
many  years  before  his  death.  He  came  into  the  profession 
with  the  Revised  Statutes,  in  the  year  1829,  and  his  profes- 
sional career  at  the  bar  and  upon  the  bench  consequently 
occupied  a  period  of  about  forty-three  years — about  twenty- 
seven  years  at  the  bar,  and  about  sixteen  years  upon  the 
bench. 

For  at  least  twenty  years  of  the  time  that  he  was  an  advo- 
cate, in  the  strifes  and  contentions  of  the  profession  he  occu- 
pied a  position  which  was  probably  not  excelled,  if  equaled, 
by  any  in  the  county  of  Columbia.  Upon  the  bench  he  kept 
that  position ;  and  his  best  position,  both  as  a  lawyer  and  as 
a  judge,  was  conceded  by  every  person  who  was  familiar  with 
his  labors,  to  be  an  enviable  one. 

He  was  an  indefatigable  worker  in  his  profession;  he 
believed  in  hard  labor,  and  I  think  we  cannot  but  attribute 
very  much  of  the  success  which  he  attained  in  his  profession 
to  that  fact,  combined  with  his  masterly  intellect.  He  was 


MR.  JUSTICE  HOGEBOOM.  537 

himself  among  the  first  to  concede  that  the  beginning  and 
end  of  success  in  the  profession  of  the  law  is  labor  and  prepa- 
ration, and  that,  without  the  careful  preparation  of  cases,  no 
successful  achievements  of  the  lawyer  can  be  obtained. 

He  was  possessed  of  a  splendid  physical  and  mental  organi- 
zation, and  consequently  his  professional  labors  were  always 
cheerfully  performed.  He  seemed  to  take  real  pleasure  in 
the  performance  of  duty  in  every  theatre  of  action  in  which 
his  professional  abilities  were  called  into  exercise. 

In  his  efforts  at  the  bar,  in  the  examination  of  witnesses,  in 
his  summing  up  of  cases  to  juries,  and  in  his  charges  to  juries, 
there  was  always  seen  a  happiness  and  satisfaction  in  his  man- 
ner which  cast  a  glow  of  sunshine  over  the  severely  logical 
character  which  was  generally  manifested  in  his  professional 
and  judicial  efforts,  and  which  added  very  much  to  the  effect 
of  the  argument,  and  of  the  legal  efforts  made  in  the  dis- 
charge of  his  duties. 

As  a  lawyer  and  judge,  while  familiar  with  the  cases,  yet 
was  he  always  bringing  his  legal  questions  to  the  test  of  those 
great  landmarks — the  settled  principles  of  the  law. 

He  believed  with  Lord  COKE,  "  That  the  knowledge  of  the 
law  is  like  a  deep  well,  out  of  which  each  man  draweth  accord- 
ing to  the  strength  of  his  understanding.  He  that  reacheth 
deepest,  he  seeth  the  amiable  and  admirable  secrets  of  the 
law." 

In  his  efforts,  either  as  lawyer  or  judge,  he  had  no  particu- 
lar model,  but  built  up  the  structure  of  his  argument,  begin- 
ning at  the  foundation,  continuing  it  upon  logical  principles, 
and  arriving  at  a  conclusion  satisfactory  to  his  own  mind,  and 
which  demonstrated  the  proposition  which  he  set  out  to  estab- 
lish. That  manner  of  reasoning  is  always,  I  think,  character- 
istic of  a  really  great  and  well-balanced  mind. 

There  was  much  about  his  manner  of  the  presentation  of 
his  argument  in  which  he  was  quite  original,  and  in  respect 
to  which  he  was  a  genius. 

He  was  no  mere  "  case  lawyer ;"  he  was  a  logical  lawyer, 
using  cases  merely  as  auxiliaries  in  the  great  business  which, 
as  a  lawyer,  he  had  before  him ;  happily  bringing  into  the 
structure  of  his  argument  all  the  graces  of  ornamentation,  and 

LANSING — VOL.  VI.      68 


538  ACTION  ON  DECEASE  OF 

reflecting  all  the  sunshine  of  his  own  overflowing,  happy 
heart. 

In  his  friendships  he  was  faithful,  constant  and  confiding. 
Men  of  such  natural  powers,  conjoined  to  such  cultivation  as 
that  which  Judge  HOGEBOOM  possessed,  are  very  rare.  They 
are  marked  and  positive  benefits  to  the  age  in  which  they  live. 
They  set  forward  the  hands  on  the  dial  of  principle,  improve- 
ment and  progress.  They  add  to  human  knowledge,  and  the 
world  is  better  for  their  having  lived. 

But  Judge  HOGEBOOM  could  not  always  be  with  us.  Tears 
before  the  time  when  his  natural  powers  would  have  begun 
to  decay,  an  acute  disease  seized  him,  and  severed  the  con- 
nection between  his  body  and  his  spirit.  In  the  meridian  of 
his  strength,  with  his  armor  on,  he  was  transferred  to  another 
world. 

The  loss  sustained  is  great — great  to  his  family,  great  to 
the  public,  and  especially  great  to  the  honored  profession  of 
which  he  was  so  solid  an  ornament. 

His  name  will  rank  high  among  the  distinguished  lawyers 
and  judges  whose  names  grace  the  annals  of  the  State  of  New 
York. 

And  the  point  of  proficiency  which  he  attained  in  our  ven- 
erable and  noble  profession  will  be  a  high  mark  for  the  ambi- 
tion of  those  who  knew  his  virtues  and  aspire  successfully  to 
travel  the  road  to  professional  excellence  and  eminence. 

REMARKS  OF  A.  FRANK  B.  CHACE,  ESQ. 

Mr.  CHAIRMAN. — I  cannot  hope,  in  anything  which  I  may 
be  able  to  say,  to  add  even  a  flower  to  the  rhetorical  garland 
which  has  been  so  successfully  twined  by  the  gentlemen  who 
have  preceded  me,  and  laid  with  willing  hands  and  loving 
hearts  upon  the  grave  of  our  honored  and  illustrious  friend. 

Still  I  am  unwilling  that  this  occasion  shall  pass  and  I 
remain  entirely  silent  or  merely  a  mourning  spectator. 

Coming  into  practice  at  this  bar  after  Judge  HOGEBOOM 
had  left  the  exalted  position  occupied  by  him  for  a  long  time 
within  its  circle,  and  taken  his  seat  upon  the  bench,  I  was  not 
permitted  to  know  him  as  a  practicing  lawyer. 

My  personal  acquaintance  with  him  began  after  he  wat 


MR.  JUSTICE  HOGEBOOM.  539 

upon  the  bench,  and  after  he  had  come  to  be  known  and 
loved  as  the  able  and  astute  lawyer,  the  honest  and  uncom- 
promising judge,  and  the  noble  and  patriotic  citizen. 

It  was  not  my  privilege  to  witness  the  rising  beauties  of 
his  sun  of  life,  but  rather  to  be  dazzled  by  its  meridian 
splendors. 

Meeting  this  distinguished  judge  under  these  circum- 
stances, and  appreciating  the  wide  distance  between  him  and 
the  young  lawyer,  struggling  for  footing  and  recognition 
within  the  bar,  I  can  only  wonder  that  it  has  been  my  proud 
privilege  to  count  Judge  HOGEBOOM  among  my  personal 
friends. 

My  intercourse  with  him,  professionally  and  otherwise,  has 
been  marked  with  many  courtesies  and  much  kindness  on  his 
part. 

It  was  one  of  the  distinguished  characteristics  of  this  noble 
man,  that  the  young  practitioner,  instead  of  being  frightened 
into  stammering  or  frowned  into  silence  by  austere  manners, 
assumed  for  judicial  dignity,  always  obtained  before  him  a 
patient  and  attentive  hearing  and  received  graceful  conde- 
scension and  kind  courtesies  at  his  hands. 

His  dignity  was  nevertheless  marked  and  never  compro- 
mised. It  was,  however,  not  that  assumed  dignity  which 
repels  and  offends,  but  that  graceful  dignity  of  manhood 
which  becomes  at  once  an  ornament  and  an  attraction,  and 
Avins  the  heart  while  it  impresses  the  judgment. 

The  younger  members  of  the  bar  in  this  judicial  district 
have  suffered  a  great  and  irreparable  loss  in  the  death  of 
Judge  HOGEBOOM.  His  was  a  peculiar  mind.  He  seemed  to 
take  the  points  of  a  case  almost  by  intuition.  The  briefest 
and  most  cursory  statement  of  facts  was  seemingly  sufficient 
for  his  great  mind  to  appreciate  a  case  in  all  its  parts.  He 
never  lost  the  points  of  the  case  in  the  wordy  war  between 
counsel,  or  in  his  admiration  for  the  eloquence  of  the  advo- 
cate. This  made  him  peculiarly  the  friend  of  the  young 
lawyer.  And  then  his  great  heart  seemed  to  overflow  with 
sympathy  for  the  pains-taking,  faithful  young  attorney,  and 
he  was  ever  ready  with  kind  words,  cheerful  counsel  and 
hopeful  predictions  to  urge  him  on  to  renewed  exertions  and 


540  ACTION  ON  DECEASE  OF 

harder  work.  But  I  did  not  rise  to  pronounce  his  eulogy. 
Other  and  abler  minds  have  shrunk  from  a  task  so  mighty, 
and  I  will  emulate  their  example.  My  purpose  was  briefly 
to  express  the  great  grief  which  the  younger  members  of 
this  bar  so  keenly  feel  in  the  death  of  our  honored  and 
revered  friend.  It  is  fitting  that  we  should  mourn,  for  we  are 
indeed  bereaved  ;  but  let  us  not  mourn  as  those  without  hope. 
Judge  HOGEBOOM  was  a  good  as  well  as  a  great  man,  and  he 
has  gone  'to  his  great  reward,  where  we  must  ere  long, 
perhaps  soon,  follow  him.  His  sun  of  life  rushed  from  its 
meridian  and  went  down  in  a  blaze  of  glory.  He  has  left  us 
the  rich  legacy  of  a  glorious  example.  Mourning  his  death, 
let  us  revere  his  memory,  remember  his  virtues,  emulate  his 
example,  and  press  vigorously  on  in  the  great  race  of  life. 
Well  has  it  been  said  by  one  of  my  brothers,  who  has  pre- 
ceded me  on  this  occasion,  in  the  language  of  one  of  our 
greatest  poets,  and  I  desire  to  complete  the  quotation : 

"  Lives  of  great  men  all  remind  us 
We  can  make  our  lives  sublime, 
And,  departing,  leave  behind  us, 
Footprints  in  the  sands  of  time. 
Footprints  that  perhaps  another, 
Sailing  o'er  life's  solemn  main, 
A  forlorn  and  shipwrecked  brother, 
Seeing,  may  take  heart  again. 
Let  us  then  be  up  and  doing, 
With  a  heart  for  any  fate, 
Still  achieving,  still  pursuing, 
Learn  to  labor  and  to  wait." 

Thus  pressing  on,  let  us  not  forget  that  "better  part" 
which  our  deceased  and  lamented  friend  \vas  so  careful  to 
assure  us,  in  the  closing  scenes  of  his  well-spent  life,  he  had 
secured  for  himself : 

Then  when  our  "  summons  comes  to  join 

The  innumerable  caravan  that  moves 

To  the  pale  realms  of  shade,  where  each  shall  take 

His  chamber  in  the  silent  halls  of  death." 

We  may  "go,  not  like  the  quarry  slave  at  night, 

Chained  to  his  dungeon,  but  sustained  and  soothed, 

By  an  unfaltering  trust,"  we  may  approach  our  grave, 

Like  one  who  wraps  the  drapery  of  his  couch  about  him. 

And  lies  down  to  pleasant  dreams." 


MR.  JUSTICE  HOGEBOOM.  541 

REMARKS  OF  HORACE  R.  PECK,  ESQ. 

MR.  CHAIRMAN  AND  GENTLEMEN. — In  justice  to  my  own 
feelings  I  cannot  let  this  occasion  pass  without  adding  a  slight 
tribute  to  the  memory  of  Judge  HOGEBOOM. 

As  a  young  lawyer  I  can  speak  most  feelingly  of  the  uni- 
form courtesy  and  kindness,  the  unvarying  sympathy  and 
encouragement  with  which  he  treated  the  junior  members  of 
the  profession.  He  had  an  especial  fondness  for  young  men. 
The  reason  of  this  may  be  found  in  the  fact  that  while  the 
wear  and  tear  of  a  life  of  incessant  industry  prematurely 
aged  his  body,  his  heart  and  soul  enjoyed  perennial  youth. 
He  never  became  a  fossil.  This  was  a  prominent  attribute  of 
his  greatness.  His  nature  was  broad  and  deep,  like  a  noble 
river  upon  which  the  fisherman's  pinnace  and  the  gallant 
ship  glide  with  equal  ease. 

Naturally  fond  of  society,  Judge  HOGEBOOM'S  peculiar 
suavity  of  manner  and  dignity  of  demeanor  stamped  him  "  a 
gentleman  of  the  old  school."  His  nature  was  chivalric  ;  he 
had  the  courage  without  the  exclusiveness  of  the  knight- 
errant.  Never  intentionally  offending  the  feelings  of  others, 
he  insisted  that  his  own  should  be  respected.  He  could  never 
brook  an  insult.  He  was  superb  even  in  his  hates ;  for  he 
hated  lies  and  meanness  most. 

To  his  profession  he  was  devoted  with  the  ardor  of  a  lover 
for  his  mistress.  Born  with  rare  talents,  education  crowned 
him  with  genius  as  a  circuit  judge. 

Judge  HOGEBOOM  was  an  honest  man — the  best  verdict 
which  either  his  profession  or  the  public  can  pronounce. 
The  motto  of  the  Chevalier  Bayard,  the  finest  gentleman  of 
history,  might  have  been  his — "  sans  peur  et  sans  reproche." 

Knowing  him  personally  quite  well  for  some  years,  both 
as  magistrate  and  as  man,  I  say  with  the  utmost  sincerity 
that  our  friend,  who  has  so  recently  passed  through  the 
change  which  in  blindness  we  call  death,  was  a  refined  gentle- 
man, a  warm  friend,  a  just  judge,  and  a  great  and  honest  man. 

My  friends,  Judge  HOGEBOOM  was  of  the  breed  of  the 
heroes,  born  to  replenish  the  world  with  the  vigor  it  needs. 

"  Strong  hands  that  are  ready  for  battle, 
True  hearts  that  take  comfort  in  life." 


542  ACTION  ON  DECEASE  OF 

When  a  great  and  good  man  dies  it  is  fit  that  a  funeral 
wail  should  ring  over  sea  and  over  land,  and  ring  back  to 
"  the  tomb  on  the  strand  of  the  dead."     Then — 
"  Heap  lofty  his  grave,  and  in  hero-song 
Chant  loudly  his  fame  in  peace  and  in  strife." 

But  we  owe  a  duty  to  ourselves.  Let  not  death  hinder 
the  journey  of  life. 

."  When  his  work  is  finished,  man  yields  his  breath, 
The  hero-song  ends  grandly  then." 

And  let  us  remember  that — 

"  Like  to  the  grass  that's  newly  sprung, 
Or  like  a  tale  that's  new  begun, 
Or  like  the  bird  that's  here  to-day, 
Or  like  the  pearled  dew  of  May, 
Or  like  an  hour,  or  like  a  span, 
Or  like  the  singing  of  a  swan, — 
E'en  such  is  man : — who  lives  by  breath, 
Is  here,  now  there,  in  life  and  death. 
The  grass  withers — the  tale  is  ended — 
The  bird  has  flown — the  dew's  ascended — 
The  hour  is  short — the  span  is  long — 
The  swan's  near  death — man's  life  is  done." 

REMARKS  OF  HON.  C.  L.  BEALE. 

MR.  CHAIRMAN  AND  GENTLEMEN  OF  THE  PROFESSION. — It 
had  been  my  purpose  to  be  silent  on  this  solemn  occasion, 
not  owing  to  any  want  of  interest,  but  from  personal  indis- 
position, and  it  will  be  with  physical  feebleness  that  I  shall 
contribute  the  "  mite  "  of  my  few  words  to  add  to  the  impres- 
sive and  melancholy  lesson  of  the  hour. 

The  offerings  which  have  been  made  to  the  memory  of  the 
illustrious  dead  have  been  eloquent  and  appropriate.  The 
garlands  which  have  been  laid  by  all  these  loving  hands  upon 
his  bier  have,  in  their  varied  beauty,  fragrance  and  signifi- 
cance, crowned  the  dear  departed  as  with  the  immortelles  of 
love. 

His  cotemporaries  have  spoken  and  imparted  the  inci- 
dents of  his  earlier  professional  career.  His  associates  upon 
the  bench,  through  the  lips  of  our  honored  chairman,  have 
spoken  appropriately  and  eloquently  of  his  judicial  life  and 
character.  And  our  younger  brothers,  the  junior  members 


MR.  JUSTICE  HOGEBOOM.  543 

of  this  bar,  have  with  feeling  and  signal  ability  paid  their 
touching  tribute  to  the  virtues  of  their  and  our  ever  to 
be  lamented  friend. 

To  all  that  has  been  said,  Mr.  Chairman,  I  would  add  from 
the  depths  of  a  heart  penetrated  with  profoundest  grief,  an 
emphatic,  a  solemn  Amen  ! 

The  merit  and  aptitude  of  such  eulogies,  as  well  as  my  own 
illness,  admonishes  me  to  forbear,  but  the  loving  and  gentle 
memories  which  have  been  stirred  in  my  bosom  by  the  solemn 
admonitions  of  the  moment,  urge  me  irresistibly  to  add  my 
leaf  to  the  ever  green  chaplet  which  we  are  twining  for  the 
brow  of  the  dead. 

My  personal  acquaintance  with  Judge  HOGEBOOM  com- 
menced about  twenty  years  since,  and  for  the  last  fifteen  years 
that  acquaintance  has  been  peculiarly  intimate  and  cordial, 
owing  mainly  to  his  own  generosity,  geniality  and  urbanity. 
From  the  first  I  was  drawn  toward  him  by  the  "  affection  of 
admiration"  I  had  been  a  witness  of  his  industry  and  cour- 
tesy in  his  office,  and  of  his  consummate  ability  at  this  bar. 
I  had  been  edified  by  his  argumentative  power  and  profound 
learning,  as  displayed  at  General  Term  and  in  the  Court  of 
Appeals,  and  had  sat  spell-bound  beneath  the  magic  and  per- 
suasive force  of  his  eloquence  before  juries. 

At  an  early  period  of  his  acquaintance,  I  became  his  junior 
in  litigated  cases,  which  my  clients  and  myself  committed  to 
his  care  and  management  as  counsel,  and  this  relation  con- 
tinued up  to  the  period  when  he  took  his  place  upon  the  judi- 
cial bench.  During  all  this  intercourse,  Judge  HOGEBOOM 
was  ever  generous,  courteous  and  considerate  toward  me. 

In  speaking  of  his  character  or  demeanor  as  a  gentleman, 
no  eulogy  would  be  deemed  extravagant  by  any  one  who 
knew  him.  A  descendant  of  the  old  Knickerbocker  stock, 
he  partook  largely  of  the  self-respect,  dignified  bearing,  ease, 
grace  and  courtly  manner  which  so  eminently  characterized 
that  proud,  pure  race.  His  mind  possessed  peculiarly  refined 
instincts,  and  had  been  cultivated  by  a  liberal  education,  and 
lo  social  intercourse,  and  to  his  professional  exertions  he 
brought  all  the  varied  treasures  of  such  culture,  acquisition 
and  discipline-  No  one  ever  approached  him,  grasped  his 


544  ACTION  ON  DECEASE  OF 

hand,  crossed  his  threshold,  enjoyed  the  pleasures  of  his 
hospitable  table,  where,  in  the  language  of  Curran,  "  the  hori- 
zon of  the  board  was  elevated  and  expanded  to  the  horizon 
of  man,"  without  forming  a  high  and  appreciative  estimate 
of  the  gentleness  and  sweet  attractiveness  of  his  nature.  As 
so  eloquently  remarked  by  the  gentleman  who  immediately 
preceded  me,  he  had  in  a  marked  degree  those  peculiar 
characteristics  of  mind  and  heart  which  shrunk  from  aught 
that  was  base,  dishonorable  or  mean. 

He  possessed  what  Mr.  Burke  so  delicately  and  with  dis- 
crimination terms,  "  that  chastity  of  honor  which  feels  a 
stain  like  a  wound,"  and  while  he  was  carefully  considerate 
of  the  feelings  of  others,  he  always,  and  with  dignity, 
demanded  the  same  consideration  for  his  own. 

As  a  professional  gentleman  he  was  for  many  years  the 
conceded  leader  of  our  bar,  and  we  all,  who  have  attained 
any  age  or  experience  in  our  courts,  have  witnessed  his 
repeated  triumphs  at  that  bar.  Not  only  in  this  forum,  but 
also  in  that  of  adjoining  counties,  he  stood  emphatically  in 
the  foremost  rank  of  his  profession.  His  efforts  before  juries, 
at  General  Term  and  in  the  Court  of  Appeals,  were  all  mas- 
terpieces of  legal  lore,  of  polished  diction,  and  of  logical  dis- 
criminations. 

In  legal  argumentation,  and  in  his  judicial  charges,  he 
exhibited  a  peculiarly  subtile  power  of  analysis,  and  I  have 
listened  with  wonder  and  delighted  surprise  to  many  of  his 
arguments  in  our  higher  courts,  and  to  that  remarkable 
analytical  power  which  he  displayed  in  what  I  may,  perhaps, 
somewhat  fancifully  term  his  ante  mortem  dissection  of  a  case, 
and  to  his  skillful  application  of  appropriate  principles  of 
law.  In  his  consideration  of  legal  questions  he  was  "  cribbed 
and  confined "  by  no  technicalities,  mere  adjudications  or 
paramount  and  decisive  precedents,  but  contemplated  and 
applied  broad,  far-reaching  and  all-underlying  principles  of 
common  and  constitutional  law.  In  his  addresses  to  juries, 
while  he  appeared  at  first  somewhat  lymphatic  or  apathetic, 
yet,  as  he  became  aroused  and  interested,  his  mind  glowed 
with  terrible  fervor,  and  grasped  and  controlled  the  minds 
and  souls  of  the  twelve  with  a  grandeur,  power  and  effect 


MR.  JUSTICE  HOGEBOOM.  545 

which  was  overwhelming ;  and  especially  when  his  feelings 
had  become  interested  on  behalf  of  the  weak  and  oppressed, 
or  when  the  wrongs  of  the  fairer  and  better  sex  were  to  be 
redressed,  the  proud,  fine  chivalry  of  his  temperament,  and 
the  aroused  energy  of  his  nature,  gave  him  distinguished 
force  and  success. 

As  a  judge,  the  shrouding  lawn  which  to-day  robes  his 
pulseless  clay  was  not  purer  than  the  heart  that  now  lies  cold 
beneath  its  folds,  or  the  ermine  which  fifteen  years  ago  was 
placed  upon  his  shoulders,  and  which  but  a  few  days  since 
was  removed  by  the  hand  of  death.  No  one  ever  suspected 
his  probity  or  impartiality ;  no  one  believed  that  fear  or  favor 
ever  actuated  him  in  aught  that  he  said  or  did  or  omitted 
to  do. 

Unapproachable,  pure,  exalted,  the  incarnation  of  justice, 
he  embodied  and  exemplified  the  full  meaning  of  that  other 
phrase  of  Mr.  Burke :  "  The  severe  neutrality  of  the  impar- 
tial judge." 

While  thus  dignified  and  impartial,  he  was,  at  the  same 
time,  in  his  high  position,  one  of  the  most  urbane,  suave  and 
considerate  of  men,  and  ever  concilatory,  patient  and  full  of 
abounding  charity  and  kind  feeling.  With  regard  to  his 
bearing  toward  the  younger  members  of  our  profession,  this 
was  peculiarly  true.  Indeed,  at  times  it  was  almost  paternal. 
Never  by  harsh  word,  offensive  or  cold  look,  or  repelling 
gesture,  did  he  wound  or  chill  the  modest  ardor  or  anxious 
and  timid  solicitude  of  a  youthful  lawyer's  heart.  Endowed 
with  all  these  graces  and  qualities,  he  was  admirably  adapted 
to  preside  at  Circuit. 

His  judicial  reasonings  at  General  Term  and  in  the  Court 
of  Appeals  stand  monumental  records  to  his  merit  and  fame 
in  the  books  of  authorities  of  our  State.  His  command  of 
elegant,  precise  and  forceful  language  renders  those  enduring 
records  not  only  graceful  as  Grecian  columns,  but  as  strong 
to  sustain  the  overlying  pressure  of  the  mighty  structure  of 
human  rights.  This  command  of  language  was,  with  Judge 
HOGEBOOM,  the  result,  in  part,  of  careful  and  exhaustive  study. 
I  well  remember  that,  in  a  not  distant  social  interview  with 
him,  conversation  turned  upon  the  use  of  appropriate  Ian- 

LANSING — VOL.  YI.         69 


546  ACTION  ON  DECEASE  OF 

guage  in  the  arduous  duties  of  the  forensic  advocate.  He 
remarked  to  me  that  the  English  language  had  been  with 
him  a  peculiar  study  for  years,  not  only  in  its  classics,  the 
works  of  Shakspeare,  Milton,  Johnson,  Burke  and  Chatham, 
but  also  in  those  technical  works  on  the  definitions  and 
synonyms  of  the  language ;  and,  taking  from  his  library  the 
work  of  Rouget  upon  that  subject,  he  informed  me  that  he 
had  worn  out  three  numbers  of  the  book  in  their  study,  and 
that  it  was  a  vade  mecum  with  him  wherever  he  went. 

The  volume  of  the  work  which  he  then  presented  to  me  I 
shall  ever  cherish  as  a  valued  souvenir  of  the  interview.  In 
this  study  of  language  he  resembled  that  consummate  master 
of  English,  John  Quincy  Adams,  who,  for  forty  years,  had 
read  ten  pages  of  Webster's  Unabridged  every  morning. 

In  his  conduct  of  criminal,  and  especially  capital  trials, 
perhaps  the  great  qualities  of  Judge  HOGEBOOM'S  mind 
became  most  conspicuously  pre-eminent. 

Never  shall  I  forget  the  dignity,  propriety  and  power  with 
which,  as  a  judge  at  Oyer  and  Terminer,  he  conducted  the 
trial  of  Edward  H.  Ruloff,  in  the  county  of  Broome. 
Although  his  decision  and  charge  were  adverse  to  my  client, 
he  rose  hourly  in  my  respectful  esteem,  until,  in  his  charge 
and  sentence  of  the  prisoner,  his  judicial  eloquence  and  force 
became  sublime  and  all-subduing. 

Remembering,  as  many  of  us  must  do,  the  elegant  tribute 
to  his  memory  and  virtues  pronounced  at  his  funeral  obse- 
quies, and  the  allusion  to  his  judicial  style  of  composition 
then  made,  I  have  deemed  it  not  amiss  to  present  to  my 
brethren  here  an  extract  from  his  charge  to  the  jury  in  the 
criminal  matter  to  which  I  have  adverted.  In  alluding  to 
the  nature  of  circumstantial  evidence,  and  to  the  nature  and 
power  of  truth,  he  used  the  following  language  to  that  jury : 

"Circumstantial  evidence,  where  the  circumstances  are 
numerous,  and  where  they  tend  directly  to  a  single  point, 
often  furnish  a  body  of  evidence  of  the  most  satisfactory 
character.  Of  course  they  must  have  these  characteristics,  in 
order  to  have  weight  or  determine  your  minds  conclusively 
in  a  particular  direction.  But  if  they  are  of  that  character — 
if  they  go  to  support  and  corroborate  the  positive  evidence 


MR.  JUSTICE  HOGEBOOM.  547 

in  the  case — they  are  often  of  that  nature  which  will  lead 
your  minds  inevitably  to  a  particular  conclusion.  With  these 
facts  and  circumstances,  thus  developed  in  evidence,  to  lead 
your  minds  to  a  particular  result,  they  furnish  but  another 
illustration  of  the  great  truth,  that  'truth  is  mighty  and  will 
ultimately  prevail.'  She  may  be  for  a  time  defeated  and 
overcome ;  she  may  be  obscured  by  the  clouds  of  ignorance, 
of  sophistry  and  of  falsehood  ;  but  she  will  ultimately  assert 
her  supremacy,  and  shine  forth  jn  the  undiminished  bright- 
ness of  her  nature.  Coming  from  God  as  her  source,  return- 
ing to  Him  as  her  ultimate  aim,  she  meanwhile  walks  majes- 
tic and  serene  in  all  the  pathways  of  human  action,  bringing 
light  out  of  darkness  and  order  out  of  confusion,  and,  sooner 
or  later,  asserts  her  irresistible  power  in  all  the  transactions 
of  men. 

"  If,  in  this  investigation,  your  conclusion  is  favorable  to 
the  prisoner,  it  will  be  your  appropriate  and  pleasing  duty  to 
discharge  him  from  imprisonment.  I  leave  him  to  the  admo- 
nitions of  his  own  conscience  and  to  tho  impressive  lessons  of 
the  hour.  If,  after  the  same  patient  attention  to  and  solemn 
consideration  of  the  testimony,  you  shall  be  obliged  to  bring 
your  minds  to  a  different  result  and  declare  his  guilt,  I  have 
no  doubt  you  will  do  it  with  the  same  solemnity,  the  same 
fearlessness,  the  same  impartiality  which  should  characterize 
in  all  cases  the  actions  of  men  placed  under  the  solemn  respon- 
sibility under  which  you  act.  In  this  confidence,  gentlemen, 
I  commit  this  case  to  you  for  its  final  disposition." 

Sentiments  of  this  kind,  extemporaneously  uttered,  show 
the  culture,  discipline  and  power  over  language,  and  the  noble 
soul  possessed  by  our  distinguished  friend. 

I  will  now  beg  leave,  Mr.  Chairman,  to  call  attention  to  the 
language  and  sentiments  of  the  deceased  in  passing  sentence 
of  death  upon  the  same  unhappy  prisoner : 

"  We  do  not  desire  to  add  a  single  unnecessary  pang  to  the 
painful  sensibilities  of  this  hour.  The  throng  of  bitter  mem- 
ories which  crowd  upon  the  anguished  head  at  such  a  moment, 
are  of  themselves  well-nigh  enough  to  overwhelm  and  crush 
it.  It  is,  however,  not  improper  to  remark,  even  at  such  a 
time,  that  the  killing  of  Mirrick  was  perpetrated  under  cir- 


548  ACTION  ON  DECEASE  OF 

cumstances  of  peculiar  atrocity,  and  though  he  is  beyond  the 
reach  of  human  sympathy,  we  do  not  deem  it  amiss  to  record, 
in  this  public  manner,  our  sense  of  his  unfaltering  fidelity  to 
the  interests  committed  to  his  care.  Nor  do  we  deem  it 
proper  to  recur  to  your  past  history.  We  only  know  of  it 
as  registered  in  the  judicial  annals  of  our  State,  and  to  some 
slight  extent  in  common  tradition.  If  there  be  anything  in 
it  to  stir  up  painful  memories,  they  are  doubtless  indelibly 
impressed  upon  your  mind.  The  commission  of  crime  carries 
its  own  punishment  with  it,  and  the  agonies  of  remorse  and 
the  sting  of  a  guilty  conscience  can  no  more  be  permanently 
expelled  from  the  human  heart  than  the  vital  current  which 
courses  through  it.  These  are  things  of  the  past.  *  Let  the 
dead  bury  their  dead.'  It  is  not  to  the  past  but  to  the  future 
that  your  thoughts  should  be  directed.  The  past  is  irrevoca- 
ble ;  no  earthly  power  can  reverse  its  history.  The  future 
may  have  a  gleam  of  hope  even  for  the  outlaw  and  felon. 
To  that  future  we  counsel  you  to  devote  the  remaining  hours 
of  your  life.  If  we  have  committed  no  mistake,  they  must 
necessarily  be  few — all  too  few,  even  if  rightly  employed  and 
not  curtailed  by  the  inexorable  demands  of  justice,  to  make 
fitting  atonement  for  the  misdeeds  of  the  past.  Let  the 
remnant  of  your  life  be  devoted  to  that  task.  There  is 
mercy  in  Heaven  for  the  penitent  and  the  contrite.  We 
may  not  be  able  to  bestow  it  here,  but  in  that  final  tribunal, 
whose  judgment  cannot  be  reversed,  and  from  whose  decis- 
ions no  appeal  can  be  taken,  the  secrets  of  all  hearts  shall  be 
made  known  ;  the  untold  history  of  all  lives  shall  be  revealed, 
and  our  doom  forever  sealed." 

I  read  these  extracts  not  only  as  specimens  of  the  peculiarly 
ornate,  yet  chaste  and  elevated  style  of  Judge  HOGEBOOM, 
but  as  showing  how  an  all-pervading  sense  of  moral  responsi- 
bility ever  possessed  his  heart  and  characterized  his  actions. 
There  was  no  stain  upon  the  fair  fame  of  the  deceased  —  hia 
moral,  as  his  social  and  professional  life,  ever  moved  in  a  pure 
and  elevated  sphere,  and  he  was  good  as  he  was  great. 

It  is  also  sweet  to  know  that,  when  the  last  great  trial  came 
for  him,  and  when  face  to  face  with  the  dark  monarch  who 
never  relents,  whose  "  golden  scepter  that  he  may  live  "  is 


MR.  JUSTICE  HOGEBOOM.  549 

never  held  out,  our  departed  friend  met  the  final  enemy  with, 
all  the  hope,  courage  and  fortitude  which  Christian  confi- 
dence can  give  to  the  human  heart.  And  thus  he  passed  to 
his  great  reward.  And  while  we  cherish  his  memory  as  an 
able  advocate,  an  erudite  lawyer,  an  upright,  consistent  and 
spotless  jurist,  we  also  cherish  that  dearer  memory  of  a  true 
friend,  a  patriotic  citizen  and  a  cultured,  chivalric,  Christian 
gentleman. 

And,  brethren  of  our  noble  profession,  desolated  as  we  are 
by  this  dread  bereavement,  heart-sore  and  heart-heavy,  and 
(in  the  language  of  one  of  our  most  refined,  elegant  and 
tender  cotemporaries)  "  while  we  may  yet  wander  darkling  in 
this  hour  of  night,  let  us  gather  up  whatever  of  strength  may 
be  left  to  our  souls  in  this  solemn  and  sweet  assurance  that 
our  friend  is  already  in  the  higher  paths,  ascending  to  the 
courts  of  a  superior  life,  and  is  alike  sacred  in  the  influence, 
and  beautiful  in  that  mystery  of  the  futurity  which  at  once 
enshrouds  and  adorns  him." 

REMARKS  OF  HON.  JOHN  CADMAN. 

MR.  CHAIRMAN  AND  BRETHREN  OF  THE  BAR. — I  came  here 
more  to  listen  than  to  speak  as  one  among  the  comparatively 
younger  members  of  the  profession.  I  hoped  and  expected 
to  listen  on  this  occasion  to  more  of  the  older  members,  those 
whose  career  has  been  more  immediately  cotemporaneous  with 
that  of  our  illustrious  brother  who  is  dead ;  and  among  all  the 
sad  thoughts  that  cluster  around  this  melancholy  occasion,  the 
question  has  forced  itself  upon  my  mind,  are  they,  too,  pass- 
ing away  ?  and  are  we  to  behold  no  more  the  familiar,  cheer- 
ful, loved  and  honored  faces  of  Gaul  and  "Tobey  among  us  ? 
And,  it  certainly  cannot  be  regarded  as  out  of  place  here  to 
express  a  wish  and  earnest  prayer  that  for  many  years  to 
come  this  idea  shall  not  be  made  a  reality. 

For  more  than  twenty  years  I  have  known  and  honored 
and  loved  HENRY  HOGEBOOM,  and  during  all  that  time  he  has 
been  one  of  the  very  few  whose  every  act  and  word  has  been 
regarded  by  me  as  a  model  and  example  worthy  of  imitation. 
And  if  any  of  us,  at  any  time,  in  striving  to  imitate  his  exam- 
ple, have,  in  our  imagination,  attained  a  position  where  HENRY 


550  ACTION  ON  DECEASE  OF 

HOGEBOOM  has  once  stood,  we  have  still  bad  to  look  for  him 
higher  up  and  further  on. 

And  so  he  has  continued  to  lead  us  on  to  higher  hopes  and 
nobler  aims,  until  he  lias  himself  passed  out  of  our  light  to  a 
higher  and  nobler  field  of  labor,  of  which  we  know  but  little 
save  by  faith. 

We  may  justly  be  proud  and  rightfully  boast  of  the  long 
line  of  illustrious  names  that  in  the  past  have  belonged  to  the 
Columbia  county  bar,  and  which  now  occupy  high  places  on 
the  scroll  of  fame  in  the  history  of  our  country,  and  'tis  well 
that  we  meet  on  an  occasion  like  this  to  enumerate  and  eulo- 
gize the  many  virtues  of  our  departed  brother. 

But  nevertheless,  it  is,  in  my  opinion,  a  common  fault,  that 
while  we  extol  the  virtues  of  the  dead  and  the  glories  of  the 
past  none  too  much,  we  are  all  too  apt  to  overlook  the  sub- 
stantial worth  and  value  of  the  present,  and  the  glorious  hopes 
and  prospects  for  the  future. 

'Tis  well  that  we  do  with  appropriate  ceremonies  bury  our 
dead  out  of  our  sight,  and  record  their  names  with  appropri- 
ate eulogies  upon  our  records.  Yet,  when  we  have  fully  per- 
formed all  these  sacred  duties  which  /we  owe  to  the  dead,  it 
is  better  that  we  should  cease  to  mourn,  and  turn  our  atten- 
tion once  more  to  the  living  present  and  see  if  we  c:m  fill  the 
vacant  places. 

I  am  not  of  those  who  believe  that  all  that  is  virtuous  and 
noble  and  good  belongs  to  the  dead  past ;  or  that  we  are 
doomed  to  rest  under  the  degrading  imputation  of  being 
degenerate  sons  of  these  noble  sires.  No,  my  brethren,  let 
ns  banish  such  thoughts  if  we  have  them,  and  once  more 
buckle  on  the  armor  and  resolve  to  imitate  the  best  examples 
of  our  illustrious  dead  by  doing  all  our  duty  here.  And  then 
I  believe  there  are  those  sitting  around  me  here  young  men, 
more  than  one,  who,  when  they  shall  have  finished  their 
course,  will  leave  names  that  shall  in  the  future  be  mentioned 
here  along  side  of  Elisha  Williams,  Martin  Yan  Buren, 
Joseph  D.  Monell,  Ambrose  L.  Jordan,  Killian  Miller  and 
Henry  Hogeboom. 


MR.  JUSTICE  HOGEBOOM.  551 

REMARKS  OF  "W.  C.  BENTON,  ESQ. 

"  No  wanting  of  fire,  no  quenching  of  ray, 
But  rising,  still  rising,  when  passing  away." 

"For  the  stars  on  our  banner,  grown  suddenly  dim, 
Let  us  weep  in  our  darkness,  but  weep  not  for  him, — 
Not  for  him,  who  departing,  left  thousands  in  tears ; 
Not  for  him  who  has  died  full  of  honor  and  years ; 
Not  for  him  who  ascended  Fame's  ladder  so  high, 
From  the  round  at  the  top  he  has  stepped  to  the  sky." 

The  great  lawyer,  the  great  jurist,  the  man  of  great  brain 
and  great  culture — his  mind  stored  with  the  deepest  lore  of  the 
law,  full  of  the  nicest  distinctions  and  the  subtlest  analysis ; 
the  hero  of  many  a  great  conflict  in  the  forum;  the  great 
intellect  holding  on  high  for  years  with  the  nicest  and  purest 
balance  the  scales  of  justice;  the  urbane,  polished  gentleman 
and  noble  Christian  man  has  fallen — fallen  in  the  zenith  of  his 
powers — in  the  height  of  his  glory. 

Where  is  there  left  among  us  the  mind  so  broad  and  capa- 
cious— so  richly  stored  with  legal  and  classic  learning — the 
brain  so  teeming  with  nice  distinctions — so  rich  in  elaborate 
analysis ;  where  the  gentleman,  so  chivalric  in  his  devotion  to 
all  that  is  pure  and  good  and  noble  in  man  or  woman,  who 
stands  so  like  one  of  the  old  knights  in  the  best  days  of  chiv- 
alry, clad  in  complete  armor  sans  peur  sans  reproche,  with 
lance  in  rest  ever  ready  to  shield  the  right  and  to  oppose  the 
wrong  ? 

It  is  somewhat  difficult,  in  a  character  which  presents  so 
many  sides  of  highest  polish,  to  select  that  which  all  will 
agree  shines  the  brightest.  Perhaps  the  most  remarkable  of 
all  his  mental  traits,  amid  all  his  store  of  legal  principles, 
and  the  great  depth  and  breadth  of  his  erudition,  was  his  per- 
fect clearness — the  sharpness  and  nicety  of  his  distinctions, 
and  the  ease,  weight  and  power  with  which,  in  charging  a  jury 
or  summing  up  a  lengthy  and  important  cause,  he  made  the 
most  perfect  analysis  of  the  greatest  mass  of  evidence,  and  the 
clearest  explanation  and  definition  of  every  issue — unfolded 
every  proposition  of  law  or  fact,  all  in  the  most  elegant,  pol- 
ished and  perfect  diction,  and  finally  submitted  the  case  to 


552  ACTION  ON  DECEASE  OF 

the  jury  in  a  light  as  clear  and  lucid  as  the  purest  water  under 
the  summer  sunshine. 

But  why  speak  further  of  his  great  mental  or  moral  quali- 
ties ?  Many  views  have  been  taken  of  his  character  by  others, 
and  none  can  be  complete.  We  have  known  him  better  than 
we  can  describe  him — feel  what  he  was  far  better  than  we 
can  tell.  We  can  only  in  deep  sorrow  mourn  his  loss,  and 
drop  a  flower  upon  his  grave. 

Standing  by  that  quiet  grave  on  the  green  hillside  of  our 
beautiful  cemetery,  gazing  far  off  on  the  grand  panorama  of 
those  eastern  hills,  we  shall  often  contrast  the  glory  and  gran- 
deur, the  triumph,  the  excitement,  the  labor  and  unrest  of 
his  life  with  the  quiet  of  his  sleep. 

"  His  part  in  all  the  pomp  that  fills 
The  circuit  of  the  summer  hills 
Is  that  his  grave  is  green." 

He  has  left  behind  him  the  memory  of  his  greatness,  his 
nobility,  his  achievements  and  his  virtues — a  long  train  of 
light — the  last  level  rays  of  the  setting  sun  ;  but  here  his  rest 
is  sweet  and  still.  With  the  green  grass  growing  above  him 
— with  the  rain  and  the  sunshine  alternately  beating  upon  his 
grave — he  awaits  the  resurrection  of  the  just  to  the  life 
eternal. 

"  When  Spring,  with  dewy  fingers  cold, 

Returns  to  deck  that  hallowed  mould, 

She  there  shall  dress  a  sweeter  sod 

Than  Fancy's  feet  have  ever  trod ; 

By  fairy  hands  his  knell  is  rung — 

By  forms  unseen  his  dirge  is  sung. 

There  Honor  comes — a  pilgrim  gray — 

To  bless  the  turf  that  wraps  his  clay ; 

And  Freedom  shall  awhile  repair 

To  dwell  a  weeping  hermit  there." 

The  resolutions  were  thereupon  unanimously  adopted. 

On  motion  of  J.  B.  LONGLEY,  Esq., 

Jtesolved,  That  the  Committee  on  Resolutions  be  consti- 
tuted a  committee  to  attend  to  the  publication  thereof. 

On  motion  of  Hon.  C.  L.  BEALE, 

Jtesolved,  That  the  members  of  the  bar  wear  the  usual 
badge  of  mourning,  consisting  of  a  knot  of  crape  upon  the 


MR.  JUSTICE  HOGEBOOM.  553 

left  breast,  during  the  present  term  of  the  Circuit  Court  now 
in  session. 

On  motion, 

Resolved,  That  a  copy  of  these  proceedings  be  published 
in  the  county  papers. 

On  motion,  the  meeting  adjourned. 

THEODORE  MILLER,  Chairman 

A.  FRANK  B.  CHACE,  Secretary. 


On  Tuesday  morning  Judge  MILLER  presented  the  resolu- 
tions to  the  Court  and  moved  they  be  spread  upon  its  minutes. 

Judge  DANFORTH  received  the  resolutions  and  spoke  as 
follows : 

It  is  appropriate  and  becoming  that  official  record  be  made 
of  the  expression  of  esteem  for  the  late  Judge  HOGEBOOM, 
which  is  now  presented  on  the  part  of  the  bar  of  Columbia 
county.  The  Court,  therefore,  readily  grants  the  request  that 
the  resolutions  be  entered  at  large  on  the  minutes,  and  adds 
its  concurrence  with  the  sentiments  which  they  contain. 

HENRY  HOGEBOOM  was  a  Christian  gentleman,  an  eminent 
jurist  and  a  just  judge.  His  mind,  by  nature  of  the  highest 
order,  was  developed,  trained  and  strengthened  early  in  life 
by  earnest  and  laborious  study,  and  later  at  the  bar  by  con- 
tact and  contests  with  the  first  legal  minds  of  the  State.  He 
was  able  and  successful  as  a  lawyer,  and  came  to  the  bench 
learned,  clear-minded  and  discriminating.  He  won  golden 
opinions  for  his  courtesy,  patience  and  ability.  His  felicity 
of  expression  was  remarkable.  His  oral  opinions  were  clear, 
concise  and  of  beautiful  diction;  but  through  his  published 
opinions,  which  are  his  enduring  monument,  his  praise  is  in 
all  our  libraries. 

In  personal  character  and  manners  Judge  HOGEBOOM  was 
pure,  unselfish,  kind,  gentle,  cordial  to  his  friends,  a  light  and 
ornament  in  the  social  circle.  It  was  my  fortune  to  know 
him  for  twenty-five  years  as  lawyer,  judge,  master  in 
chancery,  legislator  and  justice  of  this  court.  I  have  enjoyed 
his  hospitality  at  his  home  and  have  welcomed  him  in  mine. 
During  all  these  years  I  overlooked  up  to  him  as  a  good  and 

LANSING — VOL.  VI.         70 


554  ACTION  ON  DECEASE  OF  MR.  HOGEBOOM. 

great  man  and  a  delightful  associate.     As  we  loved  him  in 
life,  so  we  mourn  him  in  death. 

Until  the  last  he  faltered  not  in  duty — not  in  will — but 
only  in  strength — 

"  Like  a  tree, 

That  with  the  weight  of  its  own  golden  fruitage 
Stoops  gently  to  the  dust." 

Without  a  cloud,  in  full  brightness,  his  sun  went  down 
only  to  rise  again  amid  the  splendors  of  eternal  day — passing 
directly  from  his  well-done  duty  on  earth  to  the  repose  and 
reward  of  the  Kingdom  of  Glory. 

His  loss  will  be  long  and  deeply  felt  by  the  bench  and  by 
the  bar,  and  by  all  who  knew  him. 

The  clerk  will  enter  the  proceedings  presented,  with  this 
memento  by  the  court. 


INDEX. 


ABORTION. 
See  WITNESS,  4. 

ACCIDENT. 

See  NEGLIGENCE,  5,  6. 

ACCIDENT  INSURANCE. 
See  INSURANCE,  5,  6,  7. 

ACCOUNTING. 

See  COUNTER-CLAIMS,  3. 

EXECUTORS  AND  ADMINISTRA- 
TORS, 4,  5. 
TRUSTS  AND  TRUSTEES,  7, 13. 

ACCOUNTS. 

See  EVIDENCE,  18,  20,  21. 

EXECUTORS  AND  ADMINISTRA- 
TORS, 4,  5. 

ACTION. 

See  ARBITRATION  AND  AWARD,  1,2. 
ASSESSORS,  8,  9,  10. 
COMMON  CARRIER,  7. 
COUNTER-CLAIM,  1. 
COUNTY  TREASURER,  1  to  4 
DEED,  7,  8. 
EQUITABLE  ACTION. 
EVIDENCE,  2,  6. 
EXECUTION,  1  to  5. 
INNKEEPER. 
INSURANCE,  15,  16. 


See  JUSTICE  OP  THE  PEACE,  1. 
LANDLORD  AND  TENANT,  4. 
LINE  FENCES,  1. 
MANDAMUS,  2,  3. 
MISTAKES  OP  LAW  AND  FACT,  3. 
NEGLIGENCE,  2,  3,  4. 
NUISANCE,  2. 
PARTITION  OP  REAL  ESTATE,  1, 

2,3. 

PLEADING,  2  to  6. 
PRINCIPAL  AND  AGENT,  4,  5, 6, 8. 
PRINCIPAL  AND  SURETY,  1,  2. 
SERVICES. 
TAXES,  1. 

TRUSTS  AND  TRUSTEES,  7  to  15. 
WARRANTY  OP  CHATTELS,  1,  2, 
3. 


ADJOINING  OWNERS. 
See  DEED,  7,  8. 

ADJOURNMENT. 
See  PARTITION  OP  REAL  ESTATE,  10. 


ADMEASUREMENT   OF 
DOWER. 

See  DOWER. 


ADMINISTRATOR   WITH  THE 
WILL  ANNEXED. 

See  TRUSTS  AND  TRUSTEES,  14. 


ADMIRALTY  JURISDICTION. 
See  JURISDICTION,  1. 


556  INDEX. 

ADVERTISEMENT. 
See  FORGED  CHECK,  3. 


AFFIDAVIT. 

See  ASSESSMENT  ROLL,  1  to  4. 
ASSESSORS,  3  to  8. 


AFFIRMANCE. 
See  BOND,  1. 

AFFIRMATIVE  RELIEF. 
See  COUNTER-CLAIM,  1. 

AFFIDAVITS. 

See  RAILROAD  MUNICIPAL  BONDS,  2 
to  5. 

AGREEMENT. 

See  COMMON  CARRIER,  1  to  7. 
CONTRACT. 

ALBANY  COUNTY. 

See  CRIMINAL  LAW,  7. 

ALTERATION. 
See  PRINCIPAL  AND  SURETY,  1,  2. 

ANSWER. 

See  COUNTER-CLAIM,  3,  4. 
PLEADING,  1. 

APPARENT  TITLE. 
See  ASSIGNMENT,  1,  2. 


APPEAL. 


,  1,  2. 
DAMAGES,  3. 
DOWER,  4,  5,  6. 
PRACTICE,  1. 
WITNESS,  5,  6. 


APPENDIX. 
IN  MEMORIAM,  HENRY  HOGEBOOM. 

APPLICATION   FOR  INSU- 
RANCE. 

See  EVIDENCE,  7,8. 

APPLICATION  OF  PAYMENT. 
See  STATUTE  OP  LIMITATION,  2,  3,  4. 

APPURTENANCES. 
See  EASEMENT,  2,  3,  4. 

ARBITRATION  AND   AWARD. 

By  an  award  made  upon  submis- 
mission  to  arbitration,  by  plaintiff 
and  defendant,  the  defendant  was 
bound  to  make  certain  excavations 
provided  the  plaintiff  contributed 
one-third  of  the  expense  of  so  do- 
ing. It  appeared  that  defendant 
made,  after  the  award,  a  portion  of 
the  required  excavations  and  call- 
ed on  plaintiff  to  contribute  one- 
third  of  the  expense,  and  plaintiff 
refused  to  do  so.  That  defendant 
then  offered  to  make  all  the  exca- 
vations which  plaintiff  should  re- 
quire to  be  made  if  he  would  pay 
one-third  of  the  expense,  and  plain- 
tiff refused  to  pay  anything  on  ac- 
count of  such  excavations,  and 
notified  defendant  that  if  he  made 
them  he  would  never  pay  any  por- 
tion of  the  expense.  Held,  that 
the  things  to  be  done  by  the 
respective  parties  under  the 
award  were  in  the  nature  of  con- 
current acts  or  covenants,  and  that 
under  the  circumstances  the  de- 
fendant was  justified  in  refusing 
further  to  perform  the  award,  and 
an  action  for  non-performance 
could  not  be  maintained.  Perkins 
v.  Giles.  437 


INDEX. 


557 


ASSESSMENT  OF  TAXES. 
See  ASSESSORS. 

ASSESSMENT  ROLL. 

1.  To  render  an  assessment  roll  ille- 
gal by  reason  of  defects  in  the 
affidavit  of  the  assessors  annexed 
thereto,  the  defects  must  be  of 
substance  and  not  of  form  merely. 
The  omission  of  words  not  essen- 
tial to  the  substance  of  the  affida- 
vit prescribed  by  statute  is  not  a 
fatal  defect.     National  Bank  of 
Chemung  v.  City  of  Elmira.       11G 

2.  Nor  is  it  a  fatal  defect  if  the  affi- 
davits have  no  venue.  Id. 

8.  Nor  if  the  affidavit  was  sworn  to 
before  an  officer  different  from  the 
one  prescribed  by  the  statute,  but 
duly  authorized  to  administer 
oaths.  Id. 

4.  Assessors  having  jurisdiction, 
their  action  cannot  be  attacked 
collaterally.  Id. 

See  RAILROAD  MUNICIPAL  BONDS,  4. 


ASSESSMENTS. 

1.  By  the  Brooklyn  city    charter 
(Laws  1854,  chap.  384,  tit.  4,  §  24, 
etc.),  the  assessors  for  street  assesk- 
ments,      after      hearing     parties 
interested,  are  to  make  a  report, 
with    the    objections    presented 
to    them,     which    the    common 
council   are   to    refer   to  a  com- 
mittee, who,  after  a  hearing  pur- 
suant to  notice  published,  are  to 
report    to  the  common    council. 
Held,   that    the  omission   of    the 
committee  to  publish  notice    pf 
hearing  was  fatal  to  the  assess- 
ment.   In  the  matter  of  the  petition 
vfNatfianiel  Fox.  92 

2.  Held,  also,  that  the  act  of  1871 
(chr.p.  483),  limiting  the  authority 
of  the  court,  in  a  case  of  irregular- 
ity, to  a  reduction  of  assessments 
to  the  extent  of  its  increase  by  the 
irregularity,    though    retroactive, 
was  inapplicable.  Id. 


3.  A  local   assessment   for   street 
improvements  is  not  a  tax,  within 
the  meaning  of  article  7,  section 
13,  Constitution,   which  requires 
every  law  imposing  a  tax  to  state 
the  tax  and  its  object,  &c.        Id. 

4.  The  statutory  requirement  in  the 
charter  of  Brooklyn  (§  5,  &c.,  tit. 
4),  that  a  district  of  assessment 
shall  be  laid  out  preliminarily,  is  a 
restriction  merely  on  the  power  of 
the  common  council  in  respect  to 
work  ordered  by  them.  Id. 

5.  Commissioners  having  an  option 
as  to  the  kind  of  pavement  to  be 
used  for  streets,  but  required  to 
give  the  work  after  advertising  for 
proposals  to  the  lowest    bidder, 
may  determine  the  particular  kind 
to  be  laid  down,  by  inviting  pro- 
posals   for  different    kinds,    and 
thereupon  awarding  to  the  lowest 
bidder  for  the  kind  selected.     Id. 

6.  The     resignation     of    commis- 
sioners appointed  by  the  statute  of 
1868  (chap.  460),  authorizing  re- 
pavement,    &c.,    of   a   street   in 
Brooklyn,  and  their  employment 
on  and  compensation  for  part  of 
the  work  authorized,  will  not,  in 
the  absence  of  proof  of  fraud  or 
injury    to    the    public    interests, 
vitiate  the    assessment,    but    the 
sums  embraced  in  their  assessment 
for  their  compensation  is  to  be  de- 
ducted from  the  assessment  under 
the  law  of  1871  (chap.  483).       Id. 

7.  Whether  the  designation,  by  the 
common  council  of  Rochester,  of 
the  portion  of  that  city  deemed 
to  be  benefited  by  a  public  im- 
provement upon  which  they  have 
determined,  and  their  order  direct- 
ing the  assessment  upon  all  the 
owners  and  occupants  of  lands  and 
houses    within    the    portion    so 
designated  (see  charter,   L.  1861, 
§§  191,    192,  &c.),    prohibits  the 
assessors     from    omitting     from 
assessment  such  parts  of  the  de- 
signated territory  as  they  regard  as 
receiving  no  benefit,  quere.  Has- 
san v.  T/ie  City  of  Rochester.       185 

8.  And  whether  the  question  may 
be  raised  in  an  action  to  have  the 
tax  declared  void,  and  to  restrain 


558 


INDEX. 


its  collection,  the  common  council 
having  confirmed  it.  Id. 

9.  But  §  208  of  the  charter,  which 
declares  all  assessments  for  local 
improvements  valid,  notwithstand- 
ing irregularity,  omission  or  error 
in  the  proceedings  relating  to  the 
same,  renders  the  assessments  valid 
although  such  omission  is  made. 

Id. 

10.  Under  the  charter  of  Kochester 
city,  which  authorizes  the  appor- 
tionment of  an  excess  of    sums 
received  for  assessments  for  city 
improvements  (§  207,  Laws  1866, 
chap.  148),  such  assessments  may 
be  collected  beyond  the  actual  cost 
of  the  improvement,  if  within  the 
estimate  made  pursuant  to  section 
191.  (Id)  Fisher  v.  City  of  Rochester, 

225 

11.  The  city  cannot  credit  itself  with 
materials  taken  from  the  street  by 
its  .contractor  in  paying  him  for 
the  work.     They  belong  to  the 
owners  of  the  fee  of  the  street.  Id. 

See  ASSESSORS,  8  to  12. 


ASSESSORS. 

1.  A  writ  of  certiorari  issues  to  cor- 
rect an  erroneous  assessment,  made 
by  the  assessors.    People  v.  Assess- 
ors of  Village  of  Mechanicville.     105 

2.  The  application  of  the  rule  for  the 
assessment  of  property  belonging 
to  corporations,  in  People  v.  Assess- 
ors of  Brooklyn  (39  N.  Y.,  81),  is 
not  affected  by  the  fact  that  the 
real  estate  of  the  corporation  is 
entirely  within  the  assessors'  juris- 
diction. Id. 

3.  When  the  evidence  presented  to 
the  assessors  by  an  applicant  for 
the    reduction  of  assessments   is 
uncontradicted  and  the  facts  clear 
beyond    dispute,    they    must    be 
governed  by  such  evidence.      Id. 

4.  And  they  should  hesitate  to  dis- 
regard the  positive  affidavit  of  the 
applicant,  and  direct  proof.       Id. 

5.  But  where  from  information  re- 
ceived from  others  and  the  affi- 


davits they  are  led  to  disbelieve 
the  sworn  statements  of  the  appli- 
cant, the  information  is  a  proper 
subject  for  their  consideration.  Id. 

6.  Whether  the  omission  to  inform 
the  applicant  ofexparte  affidavits, 
considered    by  them,  would   not 
affect  the  assessment,  quere.      Id. 

7.  But  such  affidavits  are  not  to  be 
regarded  as  a  part  of  the  proceed- 
ings of  the  assessors,  upon  certio- 
rari brought  to  review  such  pro- 
ceedings, if  it  does  not  appear  that 
they  were  read  as  evidence  by  the 
assessors,  and  considered  by  them 
in  making  their  decision.  Id. 

8.  After  jurisdiction  acquired,  assess- 
ors act  judicially  in  determining 
upon  the  amount  of  the  assess- 
ment, the  right  to  exemption  and 
the  liability  of  the  property  to 
assessment,  and  are  not  liable  for 
error  in  the  determination.     Pal- 
mer v.  Lawrence.  282 

9.  But  assessors  must    make  their 
assessment  at  the  peril  of  being 
made    personally    responsible    if 
they  assess  persons  who  are  not 
inhabitants  of  their  town.          Id. 

10.  Accordingly,  where  trustees  of 
a  school  district  erred  in  determin- 
ing that  the  plaintiff  was  assess- 
able   as    an    inhabitant  of    their 
school  district  where  he  had  taken 
up    his    abode    temporarily,    and 
assessed  him  for  school  purposes, 
they  were  held  liable  for  sale  of 
his  property  under  their  warrant 
for  collection  of  the  tax.  Id. 

11.  The  cases  where  inferior  tribu- 
nals and  officers  of  limited  juris- 
diction are  required    to  proceed 
upon  proofs  presented  to  them, 
and  those  in  which    they  act  ex 
parte,  in  determining  the  question 
of  their  jurisdiction,  distinguished. 

Id. 

See  ASSESSMENT  ROLL,  4. 


ASSIGNEE  IN  BANKRUPTCY 

See  ATTACHMENT,  8. 

BANKRUPT  LAWS,  1,  2. 


INDEX. 


559 


ASSIGNMENT. 

1.  The  owner  of  a  certificate  of  in- 
debtedness to  him  for  $10,000  by 
the  State  made  a  written  transfer 
upon  the  certificate  of  "  the  within 
described  amount,  say  $10,000." 
Held,  that  he  could  not  recover 
possession  of  the  certificate  from 
the  assignee  of  his  transferee  upon 
the    ground    that  the  latter  had 
agreed  to  return  it  in  certain  con- 
tingencies which    had    occurred, 
and  of  fraudulent  representations 
in    obtaining    the    transfer,    the 
assignee  having  no  actual  know- 
ledge of  the  agreement  or  fraud. 
Mocre  v.  Miller.  396 

2.  The    case    of    McNeil   v.    Tenth 
National  Bank  (46  N.  Y.,  325)  held 
applicable  and  followed.  Id. 

See  CREDITOR'S  BILL,  2 
EVIDENCE,  11. 
MORTGAGE,  1. 
NOTES  AND  BILLS,  9. 


ASSOCIATION. 
See  COMMON  CARRIER,  7. 

ATTACHMENT. 

1.  In  cases  where  an  attachment  is 
issued,  sale  of  the  attached  pro- 
perty under  execution  upon  judg- 
ment   in    the    action  confers  no 
greater  title  to  it  than  the  debtor 
had  at  the  time  the  judgment  was 
docketed.  Lamontv.  Cheshire.  234 

2.  And  (per  MULLIN,  P.  J.),  a  special 
execution  should  be  issued  in  at- 
tachment cases,  directing  the  sale 
of  the  debtor's  interest  in  the  at- 
tached property  as  of  the  day  of 
the  levy  of  the  attachment.        Id. 

3.  The  clause  of  section  132  (Code), 
by  which  subsequent  purchasers 
and  incumbrancers  are  bound  by 
all  proceedings  in  the  action  taken 
after  the  filing  of  the  Us  pendens, 
to  the  same  extent  as  if  they  were 
parties  to  the  action,  is  not  appli- 
cable to  attachment  cases.     (Per 
MULLIN,  P.  J.)  Id. 


4.  An  attachment  upon  shares  •  of 
bank  stock,  and  other  property  in- 
capable of  manual  delivery,  can 
only  be  executed'  where  the  pro- 
perty is  held  by  a  corporation  or 
association,  by  leaving  a  certified 
copy  of  the  warrant  with  the  offi- 
cers or  managing  agent  of  such 
association  or  corporation,  men- 
tioned in  section  235  of  the  Code. 
Pardee  v.  Leilch.  303 

5.  It  is  not  a  good  execution  of  an 
attachment,  under  that  section,  if 
the  warrant  is  left  with  a  person 
not  an  officer  or  managing  agent 
of  the  association,  who  forwards  it 
by  mail  to  such  an  agent,  by  whom 
it  is  received.  Id. 

6.  It  is  ground  for  setting  aside  a 
sale  of  bank  shares,  under  execu- 
tion issued  upon  a  judgment  in  an 
action,  that  the  shares  have  not 
been  attached  at  the  commence- 
ment of  the  action.  Id. 

7.  The  proper  and  only  remedy  of 
the  judgment  debtor,  whose  shares 
have  been  unlawfully  sold  under 
the  execution,  is  by  motion  to  set 
aside  the  sale.  Id. 

8.  Where  an  assignee  in  bankruptcy 
of  such  judgment  debtor  has  been 
appointed,  he  represents  not  only 
the  debtor  but  also  his  creditors, 
and  therefore  is  the  proper  person 
to  make  such  motion.  Id. 

9.  One  who  has,  by  assignment  from 
the  purchaser  at  the  sale,  become 
vested  with  the  interest  of  such 
purchaser  in  the  property  sold,  is 
a  proper  and  necessary  party  to 
such  motion.  Id. 

See  Lis  PENDENS,  1  to  5. 


AUTHORITY. 

See  PARTNERSHIP,  1 . 

PRINCIPAL  AND  AGENT,  1, 10, 11. 


AWARD. 
See  ARBITRATION  AND  AWARD. 


INDEX. 


BANKING  CORPORATION. 
See  PRINCIPAL  AND  AGENT,  4,  5,  6. 

BANKRUPT  LAWS. 

1.  An  assignee  in  bankruptcy  may 
recover  assets  which  the  bankrupt 
has  fraudulently  concealed  from 
his  creditors,  although  the  appli- 
cation for  discharge  was  granted 
after  opposition  on  the  ground  of 
the  same  fraudulent  concealment. 
Jones  v.  MilbanJc.  73 

2.  The  proceedings  on  application 
for  the  bankrupt's  discharge  are, 
it  seems,  conclusive  only  in  that 
proceeding.  Id. 

8.  In  an  action  upon  a  contract  for 
the  recovery  of  damages  for  an 
alleged  breach,  a  trial  was  had  and 
a  decision  rendered  in  favor  of  the 
plaintiff  and  judgment  ordered 
thereupon.  Before  the  trial  and 
decision  a  petition  in  bankruptcy 
was  filed  by  the  defendant,  and, 
after  the  actual  entry  of  the 
judgment,  defendant  obtained  his 
discharge  in  the  bankruptcy  pro- 
ceedings. Held,  that  the  defend- 
ant was  discharged  from  the 
judgment  by  the  discharge  in 
bankruptcy.  Monroe  v.  Upton.  255 

4.  The  defendant,  having  had  no 
opportunity  to  plead  his  discharge 
in  the  action,  a  motion  to  set  aside 
an  execution  issued  upon  the  judg- 
ment, and  for  a  perpetual  stay 
thereof,  was  his  proper  remedy. 

Id. 

See  ATTACHMENT,  S. 
INSURANCE,  17. 


BANKS  AND  BANKING. 
See  FORGED  CHECK,  1,  2,  3. 

BILL  OF  PEACE. 

See  EQUITABLE  ACTION,  1. 

BILL  OF  LADING. 

See  COMMON  CARRIER,  11. 
EVIDENCE,  3.1 


BILL  QUIA  TIMET. 
See  EQUITABLE  ACTION,  1. 

BILLS  OF  EXCHANGE. 
See  NOTES  AND  BILLS,  8,  to  11. 

BONA  FIDE  HOLDER. 

See  ASSIGNMENT,  1,  2. 

FORGED  CHECK,  1,  2,  3. 
INSURANCE,  16. 
NOTES  AND  BILLS,  1,  2. 
PRINCIPAL  AND  AGENT,  6. 

BOND. 

1.  The  satisfaction  of  a  judgment 
affirmed  in  the  Court  of  Appeals 
discharges  the  sureties  upon  the 
appeal  bond,  and  entitles  the  ap- 
pellant to  a  return  of  securities 
delivered  as  security  against  lia- 
bility on  the  bond.     Gove  v.  Law- 
rence. 89 

2.  Proof  of  fraud   or   mistake,  to 
which  the  surety  was  privy,  in 
procuring  the  satisfaction,  might 
enable  him  to  retain  the  securities. 

Id 

3.  An  agreement  by  one  member  of 
a  copartnership  with  a  trustee  of 
the  firm  to  divert  securities  belong- 
ine  to  the  firm,  in  the  hands  of  the 
latter,  to  the  individual  use  of  the 
former,  is  not  valid.  Id. 

See  COUNTY  TREASURER,  3. 


BOUNDARY  LINE. 
See  DEED,  1  to  4. 

BREACH  OF  CONTRACT. 
See  DAMAGES,  1,  2. 


INDEX. 
BREACH  OF  WARRANTY. 


561 


See  WARRANTY  OF  CHATTELS,  1, 2, 3. 


BROKER. 

1.  A  broker  who,  without  notice  to 
his  principal,  disposes  of  stock  of 
his  principal  deposited  with  him 
as  security  against  the  liability  in- 
curred by  him  in  making  a  sale 
known  as  a  short  sale  of  coin  on 
behalf  of  the  principal,  is  liable  to 
such  principal  for  the  conversion 
of  the  stock,  after  a  demand  made 
and  refusal  to  deliver  the  same, 
and  tender  of  the  amount  due  upon 
the  transaction  in  which  loss  has 
occurred.    Lawrence  v.   Maxwell. 

469 

2.  Evidence  is  immaterial,  in  an  ac- 
tion for  such  conversion,  tending 
to  show  a  custom  existing  among 
brokers,  in  the  city  in  which  the 
transaction  occurred,  to  use  the 
stock  held  by  them  as  security  in 
the  manner  in  which  the  stock 
was  held  by  the  defendant.        Id. 

3.  Evidence  is  also  immaterial  in 
such  action  to  show  that  the  de- 
fendant had  previously  held  stock 
of  the  plaintiff  as  security,  which 
he  had  used  in  a  similar  manner 
without  objection.  Id. 

4.  The  just  and  established  rule  of 
damages  in  such  a  case  is  the  high- 
est price  of  the  stock  between  the 
date  of  the  demand  or  conversion 
and  the  day  of  trial.  Id. 

See  STOCKBROKER. 


BROOKLYN. 

See  ASSESSMENTS,  1  to  7. 
\ 

BURDEN  OF  PROOF. 

See  COMMON  CARRIER,  1,  2,  3. 
EVIDENCE,  15. 
NOTES  AND  BILLS,  2. 
STAMPS,  2. 

LANSIXG — Vou  VI.          7t 


BY-LAW. 


See  RELIGIOUS  CORPORATION,  2,3,4. 

CANAL  BRIDGES. 
See  CANAL  CONTRACTOR. 

CANAL  CONTRACTOR. 

In  order  to  render  a  canal  contractor 
liable  for  damages  resulting  from 
defects  in  a  canal  bridge,  it  ifl  not 
necessary  to  establish  either  that 
the  bridge  was  so  defective  as  to 
be  apparently  so  to  everybody,  or 
that  notice  of  its  defective  and 
unsafe  condition  had  been  brought 
to  the  contractor  or  his  agents. 
It  is  sufficient  if  it  appears  that 
the  defects  were  such  as  the  con- 
tractor might,  by  reasonable  ex- 
amination and  tests,  have  dis- 
covered, and  the  question  of  his 
negligence  in  not  making  such 
discovery  is  one  for  the  jury. 
Stack  v.  Bangs.  2(52 


CAPACITY  TO  SUE. 
See  PLEADING,  1. 


CASES  AFFIRMED,  OVER- 
RULED, DISTINGUISHED, 
ETC. 

Coclirane  v.  Dinsmore  (Court  of  Ap- 
peals, unreported),  considered  and 
distinguished.  Westcott  v.  Fargo. 

319 

Corning  v.  Southland  (3  Hill.,  352), 
explained  and  approved.  Me- 
Kinley  v.  lucker.  214 

McKinley  v.  lucker  (59  Barb.,  93), 
overruled.  McKinley  v.  Tucker. 

214 

Delamater  v.  The  People  (5  Lansing, 
332),  approved  and  followed.  New- 
man v.  The  People.  460 

McNeil  v.  Tenth  National  Bank  (46 
N.  Y.,  325),  followed.  Moore  v. 
Miller.  396 


562 


INDEX. 


People  ex  rel.  Ditcher  v.  St.  Stephen's 
Church  (3  Lansing,  434),  reversed. 
Same  case  on  appeal.  172 

People  v.  Assessors  of  Brooklyn  (39  N. 
Y.,  81),  explained.  People  v. 
Assessors  of  MecJianicmUe.  105 

WasJiburn  v.  Jones  (14  Barb.,  193), 
approved  and  followed.  Mowers 
v.  Fetters.  112 


CASHIER. 
See  PRINCIPAL  AND  AGENT,  4,  5,  6. 


CAUSE  OF  ACTION. 

See  ACTION, 


CERTIFICATE  OF  INDEBTED- 
NESS. 

See  ASSIGNMENT,  1.  2. 


CERTIFIED  CHECK. 
See  FORGED  CHECK. 

CERTIORARI. 
See  CRIMINAL  LAW,  3. 

CESTUI  QUE  TRUST. 

See  PARTITION  OF  REAL  ESTATE,  12. 
TRUSTS  AND  TRUSTEES,  7, 12. 

CHARTER. 

See  ASSESSMENTS,  7,  8, 9. 
MANDAMUS,  1. 
RELIGIOUS  CORPORATION,  1  to  5. 

CHECKS. 
See  FORGED  CHECK. 

CHURCH  CORPORATION. 

See  RELIGIOUS  CORPORATION. 


CITIES. 
See  ASSESSMENTS,  10, 11. 

CITIZENSHIP. 

See  REMOVAL  OF  CAUSES,  1, 2, 

CITY  OF  BROOKLYN, 

See  ASSESSMENTS,  1  to  7. 

CITY  OF  LOCKPORT. 
See  MANDAMUS,  1  to  4. 

CITY  OF  ROCHESTER 

See  ASSESSMENTS,  7,  8, 9, 10, 11* 

CIVIL  DEATH. 
See  CRIMINAL  LAW,  9", 

CLAIMS  TO  REAL  PROPERTY. 
See  EQUITABLE  ACTION,  1. 

CODE  OF  PROCEDURE. 

See  ATTACHMENT,  1  to  4. 
Lis  PENDENS,  1  to  5. 

COLLATERAL  MATTER. 
See  WITNESS,  3,  4. 

COLLECTOR. 
See  TAXES,  1. 

COMMERCIAL  PAPER. 

See  PARTNERSHIP. 

PRINCIPAL  AND  AGENT,  1. 


INDEX. 


563 


COMMISSIONERS  TO  ADMEAS- 
URE DOWER. 

See  DOWER,  1,  2,  3. 


COMMISSIONERS. 

See  PRINCIPAL  AND  AGENT,  8,  9. 
RECEIVER,  1. 


COMMON  CARRIER. 

I.  In  an  action  to  recover  from  an 
express  company  the  value  of 
goods  lost  by  them,  it  appearing 
that  the  goods  had  been  delivered 
to  defendant  at  its  regular  place 
of  business,  and  a  receipt  therefor 
given  to  plaintiffs,  and  that  they 
were  entered  upon  a  shipping  bill 
for  their  destination,  which  they 
never  reached,  and  defendant 
could  give  no  account  of  them 
after  such  delivery  to  it, — Held, 
that  these  facts  were  sufficient  to 
justify  a  finding  of  loss  by  negli- 
gence on  the  part  of  the  company. 

,     Westcott  v.  Fargo.  319 

8.  Under  such  circumstances  the 
plaintiff  was  not  bound,  it  seems, 
to  establish  affirmatively  that  the 
loss  occurred  by  defendant's  neg- 
ligence, but  the  burden  of  proof 
was  upon  defendant  to  show  the 
absence  of  negligence  on  its  part. 

Id. 

3.  Cochrane  v.  Dinsmore  (Court  of 
Appeals,  unreported),  considered 
and  distinguished.  Id. 

4,  Plaintiffs  had  been  in  the  habit 
of  doing  "business  with  defendant, 
and  had  been  furnished  by  defend- 
ant with   a   book    of  its   blank 
receipts,  from  which  the  receipt 
for  the  goods,  valued  at  more  than 
fifty  dollars,  had  been  taken  and 
sent  to  defendant  to  sign  when 
delivered.     The  receipt  contained 
n  stipulation  that  the  carrier's  lia- 
bility for  loss  or  damage  should 
not  exceed  fifty  dollars,  unless  the 
true  value  should  be  stated  in  the 
receipt.   A  blank  left  in  the  receipt 
for  the  value  was  not  filled  and  it 
appeared  that  neither  defendant, 
nor  it*  agent  who  received  and 


receipted  the  package,  knew  that 
the  value  of  the  goods  exceeded 
fifty  dollars.  Held,  that  plaintiffs 
were  bound  by  the  stipulation 
contained  in  the  receipt,  but  that 
the  loss  of  goods,  as  it  proceeded 
from  negligence,  was  not  covered 
by  it,  it  not  being  stipulated  that 
the  defendant  should  be  exempted 
from  liability  for  loss  arising  from 
negligence.  Id. 

5.  Held,  further,  that  this  rule  would 
apply,   although   the    stipulation 
provided  that  defendant    should 
only  be  liable  as  forwarder.      Id. 

6.  Held,  further,  that  an  exemption 
from  liability  by  the  stipulation  in 
the  receipt,  unless  the  claim  was 
presented  within  thirty  days  from 
the  accruing  of  the  cause  of  action, 
did  not  apply  to  a  loss  by  negli- 
gence; and,  moreover,  that  such 
presentation  was  not  a  condition 
precedent  to  the  right  of  action, 
and,  as  a  limitation,  should  have 
been  set  up  by  answer.  Id. 

7.  It  is  no  valid  objection  to  an 
action  against  a  joint-stock  com- 
pany, that  the  plaintiffs  are  corpo- 
rators or  members  of  the  company. 

Id. 

8.  The  defendants  were  common  car- 
riers, and  also  had,  at  one  terminus 
of  their  route,  an  elevator  through 
which  they  received  merchandise 
for  transportation,  and  which  they 
also  used  as  a  warehouse  for  stor- 
age ;  having  received  at  the  elevator 
from   a    connecting    carrier    the 
plaintiffs'  grain,   consigned    to  a 
point  beyond  the  other  terminus  of 
their  line,  without  directions  or 
agreement  for  its  storage, — Held, 
that  they  were  liable  to  the  plain- 
tiffs as  common  carriers  and  not  as 
warehousemen.  Rogersv. Wheeler. 

420 

9.  A  practice  of  plaintiffs  to  bag 
grain,  shipped  to  them  over  defend- 
ants' line,  at  the  elevator  as  a  mat- 
ter of  convenience,  not  founded  on 
any  understanding  or  agreement 
between  plaintiffs  and  defendants, 
held  not  to  affect  the  defendants' 
liability  as  common  carriers.     Id. 


564 


INDEX. 


10.  Letters  of  the  plaintiffs  sent  to 
the  defendants  in  regard  to  a  for- 
mer shipment  of  grain,  directing 
the  forwarding  of  part  of  such 
shipment,  and  containing  no  direc- 
tions as  to  the  residue,  construed, 
and  held  not  to  show  an  under- 
standing that  the  grain  in  question 
should  be  held  in  store  for  orders. 

Id. 

11.  Nor  does  the  evidence  of  an  agent 
of  the  defendants,  that  the  defend- 
ants' grain  was  stored  until  ordered 
forward,  and  that  in  storing  it  he 
acted  as  agent  for  plaintiffs,  the 
only  authority  for  so  acting  being 
derived  from  the  bills  of  lading,  by 
which  the  grain  was  consigned  to 
the    plaintiffs    at    its    destination 
under  the  care  of  such  agent  at  the 
elevator.  Id. 

12.  Where  the  only  tendency  of  cer- 
tain incompetent  testimony  was  to 
establish  a  fact  which  the  referee 
expressly  negatived  by   his  find- 
ings of  fact, — Held,  that  there  was 
no  error  for  which   the  decision 
could  be  disturbed.  Id. 

13.  The  consignment  to  care  of  "  A. 
B.,  agent,"  it  appearing  that  he 
was  agent  only  for  the  defendants, 
and  solely  in  their  employ,  was  a 
consignment  in  effect  to  the  de- 
fendants.     And  that   the  defend- 
ants had  previously  received  and 
carried  the  plaintiffs'  goods  simi- 
larly consigned  is  evidence  of  an 
understanding  by  defendants  that 
it  was  to  their   agent   for   their 
benefit.  Id. 


COMMON  COUNCIL. 

See  ASSESSMENTS,  1,  4,  7,  8,  9. 
MANDAMUS,  1  to  4. 


COMPENSATION. 
/See  RECEIVER,  1. 

COMPLAINT. 

COUNTER-CLAIM,  1. 

PLEADING,  1  to  6. 

KAILROAD  MUNICIPAL  BONDS,  1. 


CONCURRENT  COVENANTS. 
See  ARBITRATION  AND  AWARD,  1, 2. 

CONDITION. 

See  COMMON  CARRIER,  6. 
EVIDENCE,  1. 
INSURANCE,  12, 17  to  21. 

CONDITION   PRECEDENT. 

See  COMMON  CARRIER,  6. 
INSURANCE,  1. 

CONSIDERATION. 

See  EQUITABLE  ACTION,  2. 
EVIDENCE,  11. 
MISTAKES  OF  LAW  AND  FACT,  1. 

CONSTITUTION   CONSTRUED. 

1.  The  legislature  has  power,  under 
the  State  Constitution  (art.  11,  § 
1),  to  create  courts-martial  for  the 
discipline  of    the  militia.    People 
ex  rel.  Underwood  v.  Daniels.       44 

2.  And  under  the  Constitution  of  the 
United    States  (art.    1,   §  8)  and 
legislation  of  congress,  it  is  ob- 
ligatory on  the  States  to  provide 
for  such  courts  as  part  of  their 
militia  system.  Id. 

3.  Article  6  of  the  State  Constitution 
has  no  reference  to  military  courts, 
but  applies  exclusively  to  those  of 
civil  judicature.  Id. 

4.  The    provisions    of    section     2, 
article  1,  of  the  State  Constitution, 
in  regard  to  the  right  of  jury  trial, 
are  not  applicable  to  trials  by  court- 
martial.  Id. 

5.  Nor  are  those  of  2  R.  S.,  274,  § 
1,  regarding  the  publicity  of  the 
courts.  Id. 

6.  Nor  is  section  6,  article  1,  of  the 
State  Constitution,  regarding  the 
right  to  appear  by  counsel.        Id. 

See  ASSESSMENT,  3. 
CRIMINAL  LAW,  8. 


INDEX. 


565 


CONSTITUTIONAL  LAW. 

See  ASSESSMENTS,  3. 

CONSTITUTION  CONSTRUED. 


CONSTRUCTION  OF   AWARD. 
See  ARBITRATION  AND  AWARD. 


CONSTRUCTION   OF    CON- 
TRACT. 

See  CONTRACT,  1  to  5. 
MORTGAGE,  1. 


CONSTRUCTION  OF  WILL. 
See  EQUITABLE  ACTION,  1. 

CONSTRUCTIVE  NOTICE. 
See  LIB  PENDENS,  3,  4. 


See  WILL,  1. 


CONTRACT. 

1.  Plaintiff  contracted  with  defend- 
ants to  work  for  them  for  three 
years  at  a  specified  price,  and  was 
to  have  the  right  to  use  the  house 
upon1  the  premises  where  he  was 
was  to  labor,  for  himself  and 
family  to  live  in,  for  the  same 
term.  And  it  was  further  agreed 
between  them  as  follows :  "  That 
should  the  party  of  the  first  part 
(the  defendants)  sell  the  premises 
before  the  expiration  of  this  con- 
tract, they  are  to  pay  the  said  P. 
(the  plaintiff)  the  sum  of  three 
hundred  (300)  dollars,  provided 
said  P.  cannot  make  a  satisfactory 
bargain  with  the  purchaser  to  stay 
on  the  premises."  Before  the 
expiration  of  the  three  years  the 
defendants  sold  and  conveyed  the 


premises  and  put  the  purchaser 
into  possession.  Plaintiff  con- 
tinued on  the  premises  in  the  em- 
ploy of  the  purchaser;  and  the 
house,  up  to  the  tune  of  trial  of 
this  action,  which  was  brought  to 
recover  the  stipulated  sum  of  $300. 
When  the  purchaser  went  into 
possession,  he  proposed  to  plain- 
tiff to  continue  him  hi  his  employ, 
on  the  terms  prescribed  in  the 
contract,  and  plaintiff  refused  to 
accept  such  proposition,  but 
offered  to  stay  for  the  residue  of 
the  term,  on  other  terms  and  con- 
ditions which  he  submitted  in 
writing  to  the  purchaser,  who  re- 
fused to  accept  the  same,  and 
plaintiff  continued  to  work  for 
the  purchaser,  without  any  specific 
agreement  between  them  as  to  the 
terms  of  his  employment  up  to 
the  time  of  the  trial.  Held, 
that  plaintiff  having  continued 
to  remain  on  the  premises 
and  work  for  the  purchaser,  and 
being  entitled  to  receive  for  his 
services  what  they  were  worth, 
must  be  deemed  to  have  made 
with  the  purchaser  a  contract 
satisfactory  to  himself,  and  there- 
fore he  could  not  recover.  Pullar 
v.  Boston.  247 

3.  As  plaintiff  had  been  offered  by 
the  purchaser  the  same  terms  con- 
tracted for  by  him  with  the  de- 
fendants, he  would,  it  seems,  be 
deemed  in  law  to  have  refused  a 
"satisfactory"   offer   within    the 
scope  and  meaning  of  the  contract 
provision.  Id. 

4.  Held,  also,  that  the  intention  of 
the  parties  to  the  contract  was  to 
indemnify  the  plaintiff  against  loss 
and  damage  in  case  he  should  be 
thrown  out  of  employment,  and  a 
place  to  live  in  on  the  premises  by 
means  of  defendants'  sale  of  them 
before  the  expiration  of  the  term, 
and  to  fix  and  settle  the  measure 
of  such  loss  and  damage  in  such 
event ;    and   not    to    enable   the 
plaintiff  to  speculate  or  make  a 
profit  to  himself  by  exacting  better 
terms,  or  such  other  terms  as  he 
might  choose  to  dictate.  Id. 

5.  A  contract  to  employ  an  agent 
for  a  year,  if  he  "  could  fill  the 
place  satisfactorily,"  may  be  ter- 


566 


INDEX. 


minated  by  the  employer  when, 
in  his  judgment,  the  agent  fails  to 
meet  the  requirement  of  that  con- 
tract. Tyler  v.  Ames.  280 

See  ASSESSMENTS,  6. 
ASSIGNMENT,  I,  2. 
COMMON  CARRIER,  1  to  14 
DAMAGES,  1,  2. 
EVIDENCE,  2,  C.  »• 

INNKEEPER. 

INSURANCE,  1  to  4, 8,  9, 10. 
MORTGAGE,  1. 
NOTES  AND  BILLS,  9. 
PRINCIPAL  AND  AGENT,  2,  3r  4, 

5,6. 

PRINCIPAL  AND  STJBBTT,  1, 2. 
REFORMATION  OP  CONTRACT. 
STATUTE  OF  LIMITATION,  2,  3,  4. 
STOCK  BROKER.  1  to  6. 
TRUSTS  AND  TRUSTEES,  1,  2. 


CONTRACTOR 

See  ASSESSMENTS,  1 


CONTRIBUTORY  NEGLI- 
GENCE. 

See  NEGLIGENCE,  2,  3, 4,  6. 


CONVERSION. 
See  BROKER,  1. 

CONVEYANCE. 

See  DEED. 

EQUITABLE  ACTION,  2,  3. 

CONVICTION. 

See  CRIMINAL  LAW,  9. 

i    ' 

COPARTNERSHIP. 
See  PARTNERSHIP. 

CORPORATE  ACT. 
e  PRINCIPAL  AND  AGENT,  4,  5,  6, 


CORPORATIONS. 

See  ASSESSMENTS,  7,  8,  9. 
ATTACHMENT,  4,  5. 
COMMON  CARRIER,  1  to  & 
PRINCIPAL  AND  AGENT,  4, 

5,  6. 

MANDAMUS,  3. 
PLEADING,  3,  4. 
RELIGIOUS  CORPORATION. 


COSTS. 

Where  two  actions  are  tried  to- 
gether, costs  are  taxable  in  both, 
except,  perhaps,  it  seems  but  one 
trial  fee  should  be  allowed.  Hilde- 
brant  v.  Crawford.  507 

See  DowERr  6. 


COUNTER-CLAIM. 

1.  In  an  action  to  restrain  the  in- 
fringement of  a  trade-mark  and 
for  damages,  a  cause  of  action  in 
favor  of  the  defendant  against  the- 
njaintiff  for  infringing  the  same 
trade-mark,  claimed  in  the  com- 
plaint to  have  been  violated  by  the 
defendant,   is   not    a    subject    of 
counter-claim.    Accordingly,  affir- 
mative relief  to  the  defendant  in 
the  action,  restraining  the  plaintiff 
from  using  the  trade-mark  claimed 
in  his  complaint,  and  damages  for 
use    of  the    same,  is    erroneous. 
Glen  &  Hall  Manufacturing  Co.  v. 
Hall.  158 

2.  A    claim    of    defendant    against 
plaintiff,  arising  out  of  partner- 
ship transactions  between  them, 
the  partnership  being  terminated 
before  the  commencement  of  the 
action,  may  be  set  up  as  a  counter- 
claim in  an  action,  on  contract, 
and  the  amount  due  defendant  as 
such  partner  may  be  ascertained 
by  an    accounting    between    the 
parties.     Clift  v.  Northrop.       330 

3.  The  answer  set  up,  in  relation  to 
such  counter-claim,  that  the  part- 
nership terminated  at    a    certain 
day,  which  Was   several  months 
before  the  commencement  of  the 
action.     That  plaintiff  conducted 
the  business  and  acted  as  financial 


INDEX. 


567 


manager,  and  had  possession  of 
the  funds  and  all  payments,  and 
that  he  had  in  his  possession  all 
the  capital  and  profits  of  the  busi- 
ness. Held,  it  sufficiently  appeared 
from  these  allegations  that  the 
counter-claim  was  in  existence  at 
the  commencement  of  the  action. 

Id. 


COUNTY  TREASURER 

1.  A  county  treasurer  is  liable  to  the 
county  for  interest   received  on 
deposits  of  county  funds.    Super- 
visors of  Richmond  Co.  v.  Wandel. 

33 

2.  His  liability  arises  not  only  from 
his  fiduciary  relation,  but  from  the 
fact  that  the  interest  belongs  to 
the  county,  and  comes  into  his 
hands  as  county  treasurer.         Id. 

'3.  Accordingly  held,  that  his  sure- 
ties for  the  faithful  execution  of 
the  duties  of  his  office,  and  for 
payment,  according  to  law,  of  all 
moneys  coming  into  his  hands  as 
county  treasurer,  were  liable  on 
their  bond  for  such  interest  Id. 

4.  Boards  of  supervisors  do  not  act 
judicially   hi    passing   upon   the 
annual     accounts     rendered     by 
county  treasurers.  Id. 

5.  Nor  have  they  any  power,  in  pass- 
ing upon  his  accounts,  or  other- 
wise, to  sanction  the  withholding 
by  him  of  any  moneys  belonging 
to  the  county,  or  to  discharge  him 
from  liability  therefor.  Id. 

6.  Nor  will  their  acts  or  omissions 
have   the  effect  to  discharge  his 
sureties,  as  such,  in  respect  of  such 
liability.  Id. 


COURT  OF  APPEALS. 
See  BOND,  1. 

COURT  OF  SESSIONS. 
See  CRIMINAL  LAW,  7. 


COURTS-MARTIAL. 

See  CONSTITUTION  CONSTRUED,  1  to  7. 


COVENANT  OF  QUIET  ENJOY- 
MENT. 

See  DEED,  5. 


COVENANTS. 
See  ARBITRATION  AND  AWARD,  1, 2 

CREDIBILITY. 
See  WITNESS,  1,  2,  5,  6. 

CREDITOR'S  BILL. 

1.  In  an  action,  in  the  nature  of  a 
creditor's  bill,  to  reach  property  in 
the  hands  of  a  third  person  alleged 
to  be  held  for  the  debtor's  benefit, 
the  decision  of  a  referee  upon  ap- 
peal on  the  exceptions  to  findings 
of  fact,  is   to  be    considered   at 
General  Term  in  view  of  all  the 
evidence,  and  to  be  reversed  or 
affirmed  according  to  the  conclu- 
sion of  fact  which  shall  be  arrived 
at  by  the  court.     Shepherd  v.  Hill. 

387 

2.  A  debtor  made  a  general  assign- 
ment of  his  goods  (in  1861),  some 
of  them  purchased  on  credit  from 
the  plaintiff.     The  assignee  sold 
the  assigned  property  in  bulk  to  a 
third  person,  a  farmer,  for  whom 
the  debtor  then  claimed  to  act  as 
agent  in  the  management  of  a  mis- 
cellaneous business,  but  of  such  a 
character  and  under  such  circum- 
stances as  led  to  a  conclusion  that 
the  agency  was  fraudulent  and  the 
business  his  own.     During  the  al- 
leged agency  real  estate  was  con- 
veyed to  his  wife,  and  he  made  a 
deposit  to  her  credit,  and    con- 
tinued to  make  like  deposits  after 
he  claimed  to  have  terminated  his 
first  agency,  when  he  assumed  to 
act  as  agent  for  his  wife,  who  had 
no  property  except  such  as  came 
to  her  from  her  husband  after  he 


:VI8 


INDEX. 


had  incurred  the  debt.  In  a  credi- 
tor's action  to  reach  the  interest 
standing  in  the  wife's  name  in  the 
real  estate,  the  court  reviewed  the 
question  of  fraud  upon  the  evi- 
dence and  reversed  the  decision  of 
the  referqe,  which  was  for  the  de- 
fendant, and  ordered  a  new  trial. 

Id. 


CRIMINAL. 

See  WETNESS,  1,2. 

CRIMINAL  LAW. 

1.  Section  22,  2  R.  S.,  740,  has  not 
abolished  the  common-law  record 
in  criminal  cases,  as  is  shown  by 
§  4,  2R.   S.,  738;  §  10  id.,  739. 
Gralmm  v.  TJie  People.  149 

2.  But  the  statute  does  not  require 
a  formal  common-law  record  of 
Judgment  to  be  filed  in  the  first 
instance  or  returned  upon  writ  of 
error.  Id. 

3.  The  return  to  a  writ  of  error  in  a 
capital  case,  failing  to  show  that 
the  prisoner  had  been  asked  if  he 
had    anything   to    say  why  sen- 
tence should  not  be  passed,  certio- 
rari  to  the  Oyer  and  Terminer  or 
clerk,  as  counsel  should   be   ad- 
vised, was  granted  to    bring  up 
such  proceedings  as  might  remain 
in  that  court  or  the  records  there- 
of. Id. 

4.  If  during  his  term  of  punishment 
a  prisoner    escapes   from  jail  or 
State  prison,  where  he  is  confined 
upon  conviction  of  crime,  he  may 
be  retaken  after  the  term  and  held 
to  answer  for  the  residue  of  the 
time  for  whioh  he  was  imprisoned, 
under  the  provisions  of  §  20,  2  R. 
S.,  685.      Haggerty  v.  The  People 
(No.  1).  332 

5.  The  clause  of  that  section  which 
directs    the    prisoner's   imprison- 
ment until  tried  for  an  escape,  or 
discharged  on  failure  to  prosecute 
therefor,  is  not  a  limitation  of  the 
time  of  imprisonment  upon   his 
first  offence,  but  is,  it  seems,  in- 


tended to  provide  for  his  retention 
for  additional  punishment  for  the 
escape.  Id. 

6.  A  prisoner,  escaped  during  his 
term    of  imprisonment,   and    re- 
taken after  the  time  for  which  he 
was  imprisoned  has  expired,  may 
be  returned  to  State  prison,  for  a 
time  equal  to  the  remainder  of  his 
term  unserved,  by  the  court  which 
sentenced  him,  upon  information 
or  suggestion  on   behalf    of  the 
people  and  trial  of  the  question  of 
his  identity  and  escape.  Id. 

7.  The  Court  of  Sessions  of  Albany 
county  has  jurisdiction  to  direct 
such  reimprisonment  of  a  criminal 
upon  whon  it  has  passed  sentence. 

Id. 

8.  The  provision  of  the  Constitution 
(art.  1,  § 6)  which  declares  that  "no 
person  shall  be  held  to  answer  for 
a  capital  or  other  infamous  crime 
*     *     *    unless  on  presentment 
or  indictment  of  a  grand  jury," 
does  not  affect   the   remedy  by 
"  information  "  to  enforce  punish- 
ment already  due  under  sentence. 

Id. 

9.  One   who   was   convicted  of    a 
felony,  and  imprisoned,  upon  sen- 
tence, in  the   State  prison  for  a 
term  of  years,  escaped  before  the 
expiration  of  such  term,  and,  after 
it  would  have  expired,  had  he  re- 
mained in  custody,  committed  an- 
other felony.     On  being  arrested 
and    brought    before    the    court 
which  imposed  the  original  sen- 
tence, that  court  ordered  the  exe- 
cution of  the  remainder  thereof. 
The  accused,  notwithstanding  the 
objection  that  he  was  civilly  dead, 
was  put  upon  trial  for  the  second 
felony,  convicted  thereof  and  sen- 
tenced therefor,  the  second  term 
to  commence  at  the  expiration  of 
the  first.     Held,  that  there  was  no 
error,  and  the  conviction  affirmed. 
Haggerty  v.  The  People  (No.  2). 

347. 
See  NUISANCE,  1. 

WITNESS,  1,  2,  3,  4. 


CRIMINAL  RECORD. 

See  CKIMINAL  LAW,  1,  2,  3. 


INDEX. 


569 


CROPS.    N 
See  LANDLORD  AND  TENANT,  3  to  6. 

CUSTOM. 

See  BROKER,  2. 
EVIDENCE,  7,  8. 

CUSTOM-HOUSE  PERMITS. 
See  EVIDENCE,  10,  13. 


CUSTOM-HOUSE   REGULA- 
TIONS. 

See  EVIDENCE,  10,  14. 


DAMAGES. 

1.  Estimates    of     probable     sales 
furnish  no  proper  criterion  for  fix- 
ing damages ;  actual  damages,  and 
actual  loss  of  profits,  only  can  be 
recovered.'  Washburn  v.  Hubbard. 

11 

2.  Accordingly,   in   an   action  for 
breach  of  a  contract  to  continue  the 
plaintiff  as  the  defendants'  agent 
for  the  sale  of  car-springs,   and 
allow  him  commission  on  sales, — 
Held,  that  evidence  of  the  amount 
of  profits  which  might  have  been 
made  during  the  term  of  the  con- 
tract, based  upon  a  calculation  of 
the    probable    amount    of    sales 
during  such  term,  was  inadmis- 
sible to  establish   the    plaintiff's 
damages.  Id. 

3.  The  measure  of  damage  recover- 
able from  a  commercial  factor  or 
agent  who  sells  goods,  intrusted  to 
him  for  sale  at  a  specified  price,  at 
less  than  the  price  authorized,  is 
the     actual     damage     sustained. 
Hinde  v.  Smith.  464 

4.  Accordingly,  in  an  action  against 
a  factor  to  recover  for  such  a  sale, 
where  no  increased  market  value 
for  the  goods  was  shown  over  the 
price  realized, — Hdd,    that   there 
was  no  damage  and  could  be  no 
recovery.  Id. 

LANSING  —  VOL.  VI.      72 


5.  A  referee's  error  in  computing 
too  great  a  sum  as  due  the  plain- 
tiff is  not  necessarily  ground  for 
reversal  of  his  judgment,  where 
the  court  can  make  the  computa- 
tion correctly  and  direct  a  proper 
abatement.  Id. 

See  BROKER,  4. 
CONTRACT,  4. 
COUNTER-CLAIM,  1. 
LINE  FENCES,  1. 


See  PRINCIPAL  AND  AGENT,  9. 
DEED. 

1.  A  line  given  in  a  deed  as  running 
from  one  monument  to  another,  is, 
in  the  absence  of  further  descrip- 
tion, presumed  to  be  a  straight 
line.     Kingsland  v.  Chittenden.  15 

2.  The   rule    which    carries   land, 
bounded  upon  a  stream  or  pond, 
to  the  middle  thereof,  applies  only 
where  the  grant  is  in  terms  bound- 
ed on  the  stream  or  pond  gene- 
rally. Id. 

3.  It  is  founded  on  the  presumed 
intent  of  the  grantor,  and  can  never 
be  applied  when  the  presumption 
is  repelled  by  the  language  of  the 
grant.  Id. 

4.  A  map  made  for  the  owner  of  an 
entire  tract,  and  referred  to  in  the 
deeds  of  parcels  thereof,  is  admis- 
sible evidence  between  the  subse- 
quent grantees  upon  a  question  as 
to  their  boundaries.  Id. 

5.  Under  a  conveyance  of  land,  with 
covenant  for  quiet  enjoyment,  re- 
serving the  right  to  enter  on  a  cer- 
tain part  thereof  and  dig  and  take 
the  clay  and  sand  fit  for  brick 
making, — Held,  that  the  grantor 
was  not  at  liberty  to  remove  the 
lateral  support  of  the  land  granted, 
in  the  exercise  of  his  right  to  take 
the  clay  and  sand  from  the  part 
specified.     Ryckman  v.  Gillis.     79 

6.  Also,  that  the  property  in  the  clay 
and  sand  was  excepted  from  the 
conveyance,  and  the  provision  in 
respect  to  entry  for  their  removal 


570 


INDEX. 


did  not  change  the  nature  of  the 
grantor's  title  to  them.  Id. 

.  A.  conveyance  of  land  to  a  rail- 
road company,  "  for  the  uses  and 
purposes  of  said  railroad,  and  for 
no  other  or  different  purpose,"  de- 
scribed two  parcels;  the  descrip- 
tion of  the  second  commencing 
"  together  with  a  piece  for  mate- 
rials of  five  hundred  and  thirty 
feet  in  length,  &c."  A  map  was 
annexed  to  the  deed  and  referred 
to  in  the  description,  on  which 
sucli  second  parcel  was  laid  down 
and  designated  "for  materials." 
Held,  that  these  words  did  not 
exempt  the  company  from  liability 
to  the  grantor  for  damages  caused 
by  his  negligently  digging  away  a 
part  of  such  secondly  described 
lot,  so  as  to  cause  his  adjoining 
land  to  fall  in,  and  seriously  to 
impair  its  value.  Ludlow  v.  Mud- 
son  Biv.  E.  E.  Co.  128 

.  The  cause  of  action  for  damage 
did  not  accrue  until  the  caving 
away  of  the  land  took  place,  from 
which  the  injuries  resulted.  Id. 

See  DOWER,  1,  2. 
EASEMENT,  2.  3,  4! 
EQUITABLE  ACTION,  1,  2,  3. 
MORTGAGE,  1. 
TRUST  AND  TRUSTEES,  1  to  7. 


DEFENCE. 

See  COUNTER-CLAIM,  1. 
EVIDENCE,  9,  15. 
MISTAKES  OP  LAW  AND  FACT,  1. 
NOTES  AND  BILLS,  1,  2. 
STOCKBROKER,  3,  4. 


DELIVERY. 
Bee  NOTES  AND  BILLS,  3,  9,  10. 

DEMURRER. 

See  MISTAKES  OP  LAW  AND  FACT,  1. 
PLEADINGS,  4,  5. 
REFORMATION    OP    CONTRACT, 
1,2. 


DENIAL. 

See  EXECUTORS  AND  ADMINISTRA- 
TORS, 2. 


DEPOSITS. 
See  MILLS 

DEPUTY  SHERIFF. 
See  EXECUTION,  1  to  5. 

DESCRIPTION. 
See  DEED,  1  to  4. 

DESTRUCTION  BY  MOB. 
See  TENANTS  IN  COMMON,  1 

DEVISE. 

1.  A  devise  to  testator's  widow  for 
life,    "and  from  and  after"  her 
death  to  all  his  children  in  equal 
shares,  creates  a  vested  remainder 
in  fee  to  the  children  to  vest  in 
possession  on  termination  of  the 
life  tenant's  estate.    Livingston  v. 
Green.  50 

2.  An  additional  provision,  that  if 
any  child  should  die  leaving  heirs, 
they  should  receive  their  parent's 
portion,  furnishes  no  evidence  of 
intent  that  the  remainder  should 
not  vest.  Id. 

3.  Nor  does  an  omission  to  provide 
for  the  case  of  any  of  the  children 
dying  without  issue.  Id. 

See  EQUITABLE  ACTION,  1. 

DISCHARGE  IN  BANKRUPTCY 
See  BANKRUPT  LAWS,  1, 2, 3. 

DISCRETION. 
See  CONTRACT,  5. 


INDEX. 


571 


DITCHES. 
£tf  MILLS,  2,3. 

DOMICILE. 

1.  A-soldier  may  abandon  his  domi- 
cile and  acquire  a  new  one,  as 
other  persons.    Ames  v.  Duryea. 

155 

2.  His    purchasing    or     renting   a 
dwelling,   to    which  he  removes 
his  family  and  in  which  he  lives, 
is  evidence  of  a  change  of  domi- 
cile, in  the  absence  of  facts  mani- 
festing an  intention  not  to  remain 
permanently  in  such  dwelling.  Id. 

3.  So  the  removal  of  his  family  to  a 
place  where  they  take  board  is 
evidence  of  like  change.  Id. 

See  RESIDENCE. 


DOWER. 

1.  A  widow  is  entitled  to  have  set 
off  to  her  as  her  dower,  by  metes 
and  bounds,  to  be  held  by  her  in 
severally,  the    one-third  part  of 
land  of  which  her  husband  has 
been  seized  in  fee  in  severally, 
during  coverture,  and   has   con- 
veyed an  undivided   portion   to 
another  person,  she  not  joining 
with    him   in    the    conveyance. 
Smith  v.  Smith.  313 

2.  She  is  also  entitled  to  have  set  off 
to  her,  by  metes  and  bounds,  as 
her  dower  therein,  the  one-third 
part  of  lands  conveyed  to  the  hus- 
band   and    a    third    person,    as 
tenants  in    common    during   co- 
verture, and  so  held  by  them  at 
the  time  of  the  husband's  death, 
to  be  held  by  her   as  tenant  in 
common  with  the  other  owner. 

Id. 

3.  Although  the  statute  hi  relation 
to  proceedings  for  admeasurement 
of  dower  does  not  require    any 
notice  to  be  given  of  the  meetings 
of  the  commissioners,  yet    such 
notice  is  customary  and  proper, 
and  should  be  given  ;   but  where 
it  appears  that  a  party  interested, 
who  complains  of  the  omission  to 


give  such  notice  knew  of  such 
meetings,  and  that  no  injustice 
had  been  done  him  by  the  de- 
cision,— Held,  that  the  commission- 
ers' report  should  be  confirmed, 
notwithstanding  no  formal  notice 
of  their  meetings  had  been  given. 

Id. 

4.  No  appeal  can  be  taken,  under 
the    provisions    of    the    Revised 
Statutes,  from  an  order  confirming 
such  a  report,  unless   the  com- 
missioners are  appointed  by  the 
County  Court  or  a  surrogate  ;  but 
an  appeal  to  the  General  Term 
from  the    order   of   the  Special 
Term,  confirming  the  report  of 
the  commissioners  appointed  by 
the  Supreme  Court  upon  petition, 
may  be  upheld    under  the  pro- 
visions of  chapter  270,  Laws  of 
1854,  which  allows  appeals  to  be 
taken  in  any  special  proceeding 
from  an  order  or  final  determina- 
tion made  at  Special  Term  to  the 
Grand  Term.  Id. 

5.  Such  an  appeal  does  not,  how- 
ever, stay  the  proceedings,  with- 
out the  order  of  the  court  or  a 
judge  thereof.  Id. 

6.  The  costs  of  an  appeal  from  the 
order   confirming   the    report  in 
such  proceedings,  where  the  ap- 
pointment has  been  made  by  the 
Supreme    Court,    are   not   those 
given  by  the  Revised  Statutes,  but 
are  regulated  by  the  provisions  of 
chapter  270,  Laws  of  1854        Id. 

See  EQUITABLE  ACTION,  2. 
TRUSTS  AND  TRUSTEES,  6. 


DUTIES. 
See  EVIDENCE,  10. 

EASEMENT. 

1,  The  right  to  use  ground  contigu- 
ous to  a  saw-mill,  lor  the  piling  of 
logs,  may  be  gained  by  prescrip- 
tion.    Voorhees  v.  Burchard.     176 

2.  And  it  passes  by  conveyance  of 
the  mill  as  appurtenant  thereto. 

Id. 


572 


INDEX. 


3.  Evidence  of  the  intention  of  the 
parties  to  the  deed,  that  the  grantee 
should  not  acquire  the  easement, 
cannot  prevail  over  a  conveyance 
of  the  mill  and  its  appurtenances. 

Id. 

4.  Evidence  is  admissible  to  restrict 
the  right  to  such  premises  as  are 
reasonably  necessary  for  the  enjoy- 
ment of  the  easement.  Id. 

See  MILLS,  1  to  6. 


EJECTMENT. 
See  MILLS,  5. 

ELECTION. 
See  REFORMATION  OF  CONTRACT,  2. 

EMPLOYER  AND  EMPLOYE. 
See  CONTRACT,  5. 

ENCROACHMENT. 
5. 


ENTRIES. 

See  EVIDENCE,  13, 

PRINCIPAL  AND  AGENT,  5. 


EQUITABLE  ACTION. 

.  Certain  real  estate  was  devised  to 
J.  C.  S.,  a  daughter  of  testator, 
"subject  to  the  following  condi^ 
tion  and  contingency  :  That  said 
gift  is  made  and  given  to  her  and 
her  direct  lineal  descendants, 
should  she  have  any,  in  fee  simple 
absolutely  ;  but  in  the  event  that 
she  shall  die,  leaving  no  children, 
or  descendants  of  any  children, 
then  *  *  *  to  the  children  of  the 
survivor  or  survivors  of  my 
children  (naming  them)  equally, 


share  and  share  alike,''  &c.  J.  C. 
8.  deeded  the  premises  to  plaintiff 
in  fee,  who,  having  been  in  pos- 
session more  than  three  years, 
brought  this  action  to  obtain  a 
construction  of  the  will  as  to  the 
title  said  J.  C.  S.  obtained  under 
such  devise,  making  J.  C.  S."~and 
her  children  (some  of  whom  were 
infants)  parties  defendants,  and 
alleging  that  her.  estate  was  a  fee 
simple  absolute.  J.  C.  S.  did  not 
answer  the  complaint.  The  adult 
children  answered,  setting  up  that 
they,  under  said  will,  with  their 
brothers  and  sisters,  were  seized  of 
an  estate  hi  fee  simple  subject  to 
the  life  estate  of  their  mother  (J. 
C.  S.),  and  asking  that  the  court  so 
decree.  The  infants  by  their 
guardian  put  in  the  usual  general 
answer,  submitting  their  rights  to 
the  court,  and  also  making  the 
same  claim  as  the  adults  in  relation 
to  their  rights  under  the  will.  Held, 
that  the  complaint  was  properly 
dismissed.  Such  action  cannot  be 
maintained  in  equity,  either  as  a 
bill  quid  timet  or  in  the  nature  of 
quia  timet,  nor  as  a  bill  of  peace, 
nor  at  law  under  the  statute,  the 
complaint  containing  no  allegation 
that  the  defendants  unjustly  with- 
held possession  of  the  premises 
from  plaintiff,  but  contained 
allegations  contradictory  thereto 
as  to  the  defendant  J.  C.  S.,  and 
showing  the  fact  of  the  infancy  of 
others  of  the  defendants.  Bailey 
v.  Southwick.  356 

2.  Plaintiff,  a  married  woman,  was 
the  owner  of  certain  real  estate,  a 
large  part  of  the  purchase-money 
of  which  had  been  furnished  by  her 
husband,  and  he  had  also  expend- 
ed large  sums  for  its  improvement 
and  repair.  It  was  also  heavily 
incumbered.  The  husband  died, 
leaving  plaintiff  his  widow,  and 
children  by  a  former  marriage,  and 
having  upon  his  death-bed  re- 
quested the  defendant  to  take  said 
property  and  do  the  best  he  could 
therewith  for  his  wife  and  children, 
and  requested  him  to  tell  plaintiff 
that  he  wished  her  to  convey  the 
property  to  defendant,  that  he 
might  manage  it  for  her  benefit  and 
that  of  his  children.  After  the  hus- 
band's death,  defendant  informed 
plaintiff  of  the  request  made  by 


INDEX. 


573 


him,  and  defendant  conveyed  the 
property  to  plaintiff,  the  only  con- 
sideration of  the  conveyance  being 
her  husband's  request  and  the 
verbal  and  implied  promise  of  de- 
fendant that  he  would  conform 
with  such  request.  After  such 
conveyance,  defendant  expended 
large  sums  in  discharging  liens  and 
incumbrances  upon  the  property, 
existing  at  the  time  of  the  convey- 
ance, and  in  paying  for  repairs 
and  improvements  thereto,  com- 
menced in  her  husband's  lifetime. 
Held,  in  an  action  brought  to 
obtain  a  reconveyance  of  the  pro- 
perty, that  plaintiff  was  not  entitled 
to  such  relief,  and  yet  that  a  judg- 
ment rendered  for  the  defendant 
was  erroneous  and  must  be  re- 
versed and  a  new  trial  ordered  ; 
that  defendant  was  entitled  to  be 
reimbursed  the  amounts  expended 
by  him  under  the  conveyance  in 
good  faith,  hi  paying  liens  and  in- 
cumbrances, and  in  making  repairs 
and  to  be  subrogated  to  the  rights 
of  creditors  of  the  husband,  whose 
debts  he  had  paid,  and  to  a  reason- 
able compensation  for  his  services ; 
that  he  should  also  be  held  to 
account  for  the  rents  and  profits 
received  by  him ;  that  the  respec- 
tive rights  of  the  parties  interested, 
including  any  question  as  to  the 
widow's  right  of  dower,  should  be 
ascertained  upon  the  new  trial  and 
settled  upon  equitable  principles. 
Collins  v.  Collins.  368 


3.  Held,  further,  that  the  children 
of  the  intestate  had  interests  in  the 
estate,  the  rights  to  and  the  extent 
of  which  could  only  be  deter- 
mined by  their  beirfg  made  parties 
to  the  action,  and  that  they  should 
therefore  be  brought  into  the  action 
as  such  parties.  Id. 


See  COUNTER-CLAIM,  1. 

PARTITION  OF  REAL  ESTATE,  1, 

2,3. 
TRUSTS  AND  TRUSTEES,  7  to  13. 


EMPLOYER  AND  EMPLOYE. 

See  SERVICES. 


EQUITABLE  RELIEF. 

See  COUNTER-CLAIM,  1. 

EQUITABLE  ACTION,  1.  2,  8. 


ESCAPE  OP  PRISONER. 
See  CRIMINAL  LAW,  4  to  9. 

ESTOPPEL. 

See  ASSIGNMENT,  1,  2. 
BANKRUPT  LAWS,  1,  2. 
NOTES  AND  BILLS,  5,  6. 

NUISANCE,  1. 

EVIDENCE. 

1 .  Evidence  is  admissible,  in  an  action 
on  a  fire  insurance  policy,  to  show 
waiver,  by  the  insurer's  agent,  of 
a  condition  that  any  other  insur- 
ance shall  be  by  a  consent  of  the 
company    written    on    a    policy. 
Whitwell  v.  The  Putnam  Fire  Ins. 
Co.  166 

2.  In   an    action   to   recover   back 
money  paid  upon  a  contract  be- 
tween plaintiff  and  defendant  for 
the  sale  and  delivery  of  grape  roots, 
on  the  ground  that  the  contract 
was  rescinded,  the  roots  having 
turned  out  dead  and  worthless,  it 
seems  that  evidence  that  an  agent 
of  the  defendant,  who  made  the 
contract  and  delivered  the  roots, 
requested  the  agent  of  the  plain- 
tiff, who  received  them,  not  to  undo 
the  wrappers  in  which  they  v/ere 
inclosed,  as  the  former  was  aoout 
to  do  for  the  purpose  of  examining 
them,  as  it  was  a  cold  night  and  he 
would  not  be  responsible  if  they 
turned  out  not  to  be  right,  was 
admissible   as   a  part  of  the  res 
gestcR  of  the  delivery  and  accept- 
ance, and  showing  a  good  reason 
for  the  acceptance  at  the  time  and 
payment    of  the    purchase-price, 
wfthout  examination  in  respect  to 
the  condition  of  the  rocta.    Stone 
v.  Frost.  440 


574 


INDEX. 


3.  The  fact  as  to  whether  a  root  or 
other  vegetable  substance  is  dead 
or  not  is  matter  of  such  common 
observation  and  experience  that  it 
does  not  require  an  expei  t  to  tes- 
tify in  regard  to  it,  and  the  same 
may  be  said  ia  regard  to  the  ques- 
tion whether  a  dead  grape  root  has 
any  marketable  or  other  value.   Id. 

4.  The  roots  being  dead  when  de- 
livered and  of  no  value  whatever, 
no  necessity  existed,  it  seems,  for 
returning,    or  offering    to   return 
them  before  bringing  the  action. 

Id. 

5.  The  plaintiff  wrote  to  one  who 
had  acted  as  defendant's  agent,  in 
making  the  contract  and  deliver- 
ing the  roots,  that  the  roots  were 
dead  and  worthless,  and  requested 
him  to  come  and  take  them  away 
and  pay  back  the  money,  or  if  he 
would  not,  to  lay  the  letter  before 
defendant.     Shortly  afterward  de- 
fendant   answered  the   letter,  ac- 
knowledging its  receipt  from  his 
agent,  and  refused  to  comply  with 
the  request,  insisting  that  the  roots 
were    in    good  condition.     Held, 
sufficient  evidence  from  which  the 
jury  might  have  found  a  notice  to 
defendant    that    the    vines    were 
worthless,  and  an  offer  to  return 
them.  Id. 

6.  Held,  also,  as  matter  of  law,  that 
this  letter  and  reply  constituted 
sufficient  notice  to  defendant,  of 
the  worthlessness  of  the  roots  and 
offer  to  return  them,  to  sustain  the 
action.  Id. 

7.  In    an    action   against  a  marine 
insurance      company,     plaintiffs 
claimed  a  recovery  by  virtue  of  a 
written  application  by  plaintiffs  to 
defendant    "for    not    less    than 
$10,000,"  marked  "binding"  by 
the  company.     Held,  that  in  order 
to  establish  a  contract  between  the 
parties,  evidence  was  admissible 
to  show  that    a    custom  existed 
between  the  plaintiffs  and  several 
insurance    companies,    including 
the  defendant,  in  cases  where  the 
value  of    property  upon    which 
insurance    was   desired   was   not 
known  at  the  time  of  the  applica- 
tion, by  which  custom  applicjitions 
were  made  like  the  one  mentioned, 


to  the  various  companies,  for  in- 
surances in  sums  in  the  aggregate 
amounting  to  what  plaintiffs  sup- 
posed might  be  the  actual  value 
of  the  property  at  risk,  and  that 
such  applications  were  accepted 
and  made  binding  for  such  indefi- 
nite sums,  with  the  understanding 
that  when  the  value  of  the  pro- 
perty at  risk  should  be  ascer- 
tained, the  amount  so  insured  by 
the  respective  companies  should 
be  declared  and  apportioned  so 
that  the  amounts  actually  insured 
should  bear  the  same  proportion 
to  the  property  actually  at  risk  as 
they  bore  to  the  aggregate  of  all 
the  indefinite  insurances  thereon ; 
and  that  after  the  amount  had 
been  so  ascertained  and  fixed,  a 
policy  in  the  form  then  in  use  was 
issued  by  the  respective  compa- 
nies for  the  precise  sum  so  fixecf 
and  adjusted ;  and  that  in  this  casn 
the  plaintiffs,  not  knowing  the  ac  • 
tual  value  of  the  property,  had 
made  insurances  in  like  manner 
with  certain  of  the  other  compa- 
nies upon  the  property,  in  various 
sums.  Fabbri  v.  Mercantile  MuJ. 
Ins.  Co.  337 

8.  Held,  also,  that  the  contract  cre- 
ated by  the   acceptance  of    the 
application,  as  explained  by  evi- 
dence of  the  practice  mentioned, 
would  render  the  defendant  liable 
for  a  proportionate  amount  of  the 
loss  to  the  amount  insured,  not- 
withstanding a  clause    contained 
in  the  policies  used  by  defendant, 
to  the  effect  that  if   the  insured 
made  any  other  insurance  upon 
the  property,  prior  in  date  to  the 
policy,  then  the  defendant  should 
be  answerable  only  for  so  much  as 
the  amount  of  such  prior  insur- 
ance might  be   deficient  toward 
fully   covering  the  property  in- 
sured, and  there  were  other  prior 
insurances   effected  by  the  other 
companies  sufficient  to  cover  the 
actual  loss.  Id. 

9.  A  cask  of  wine,  shipped  with  de- 
fendants, was  received  by  them  in 
good  order,  and  they  undertook 
for  a  reward  to  deliver  it  at  its 
destination,  stipulating  against  lia- 
bility by  loss  from  leakage,  dam- 
age   from  stowage,  straining    or 
other  peril  of  the  seas.    The  cash; 


INDEX. 


575 


arrived  In  good  condition,  but 
without  any  contents.  In  an  ac- 
tion brought  to  recover  for  the 
loss,  the  defendants  set  up  as  a 
defence  that  the  wine  had  leaked 
out,  and  also  contested  the  alleged 
value.  Held,  that  evidence  of  a 
stevedore  as  to  his  experience  of 
the  effect  of  heavy  weather  on 
fluids  in  casks  during  a  sea  voy- 
age, and  also  as  to  the  condition 
of  the  other  casks  containing  fluids 
that  came  out  of  the  vessel  at  the 
same  time  as  this  one,  was  properly 
excluded.  Arend  v.  Liverpool,  If. 
T.  and  Ph.  Steamship  Co.  457 

10.  Also  that  a  motion  for  a  non- 
suit, on  the  ground  that  plaintiff 
had  not  shown  that  the  govern- 
ment duties  had  been  paid  on  the 
wine,  and  a  custom-house  permit 
obtained  to  land  it,  was  properly 
denied.  Id. 

11.  Also,  the  cause  of  action  having 
been  assigned  by  the  owner  of  the 
wine  to  plaintiff,  that  a  question 
put  to  the  assignee  as  a  witness, 
as  to  the  consideration  of  the  as- 
signment, was  properly  overruled. 

Id. 

12.  Also,  that  a  question  whether 
this  wine  did  not  often  deteriorate 
coming  to  this  country  was  pro- 
perly excluded.  Id. 

13.  A    custom-house    officer,    who 
kept  an  entry  of  an    application 
for  a  permit  to  land  this  cask  of 
wine,  was  asked  what  he  found  in 
his  memorandum  as  to  the  valua- 
tion of  this  cask.    Held,  properly 
excluded,  there  being  no  evidence 
to  connect  the  importer  with  the 
memorandum.  Id. 

14.  A  witness  acquainted  with  cus- 
tom-house business  and  regulations 
was  asked  to  state  under  what 
circumstances  and  on  what  regu- 
lations free  permits  are  given  at 
the   custom    department.     Held, 
properly  excluded.  Id. 

15.  Held,  also,  that  the  cask  having 
been  received  in  good  order,  the 
defendants  were  bound  to  show 
that  the  loss  occurred  within  some 
clause  of  the  bill  of  lading  exempt- 
ing them  from  liability ;  and  that 


proving  that  the  ship  had  a  tem- 
pestuous voyage,  that  the  cargo 
was  well  stowed,  and  that  the 
hatches  were  properly  secured, 
&c.,  did  not  tend  to  shift  the  bur- 
den of  proof.  Id. 

16.  Parol  evidence  is  admissible  of 
the  contents  of  a  letter,  it  appear- 
ing that  the  person  in  whose  pos- 
session it  is,  is  out  of  the  country. 
Tucker  v.  Woolsey.  482 

17.  Parol  evidence  is  admissible  in 
an  action  for  the  foreclosure  of  a 
mortgage,  payable  in  money,  as- 
signed by  the  mortgagee  as  col- 
lateral security  for  the  payment 
of  his  indebtedness  to  the  assignee, 
that  it  was  agreed  that  such  in- 
debtedness was  to  be  paid  in  pro- 
duce.     Hildebrant   v.    Crawford. 

502 

18.  A  statement  copied  from  a  book 
of  account  and  compared  there- 
with is,  upon  loss  of  the  book,  ad- 
missible to  prove  the  account.    Id. 

19.  A  witness  may  not  testify  to  the 
reason  others  had  for  their  con- 
duct; such  testimony  is  but  the 
expression  of  an  opinion.    Filkins 
v.  Baker.  516 

20.  A    witness    may    refresh    his 
memory  from  a  copy  made  by 
himself,  of  his  memorandum,  on 
proof  that  the  original  memoran- 
dum is  lost.  Id. 

21.  Items  of  charge  for  labor  and 
services,  made  up   from  memo- 
randa in  detail  previously  taken 
daily,  and  at  the  end  of  the  week 
written  out  by  direction  and  in  the 
presence  of  the  witness,  are  avail- 
able as  original  memoranda.      Id. 

22.  Testimony  given  without  objec- 
tion cannot,  it  seems,  be  stricken 
out  upon  motion  made  after  the 
whole  evidence  is  in.  Id. 

See  ASSESSORS,  3  to  8. 
BANKRUPT  LAWS,  2. 
BROKER,  2,  3. 
COMMON  CARRIER)  1,  2,  3,  10  to 

14. 

DAMAGES,  2. 
DEED,  1  to  5. 
DOMICILE,  2,  3. 


576 


INDEX. 


See  EASEMENT,  3,  4. 
INSURANCE,  2,  3,  4. 
LANDLORD  AND  TENANT,  4,  5. 
NEGLIGENCE,  3,  4. 
NOTES  AND  BILLS,  1,  2. 
PRINCIPAL  AND  AGENT,  13. 
RAILROAD  MUNICIPAL  BONDS,  2 

to  5. 

RESIDENCE,  1. 
STAMPS. 

STATUTE  OF  LIMITATION,  4. 
WITNESS. 


EXCEPTION. 
See  DEED,  5,  6. 

i  EXECUTION. 

1.  If  the  plaintiff  in  an  execution 
treats  it  as  properly  in  the  officer's 
hands    after  the  return  day,   he 
waives  his  existing  right  of  action 
for  its  non-return.     McKinley  v. 
Tucker.  214 

2.  Instructions  to  the  deputy  after 
the  return  day,  implying  a  consent 
that  he  may  retain  the  execution, 
make  the  deputy  the  party's  agent 
and  discharge  the  sheriff  from  an 
accrued  cause  of  action  for  its  non- 
return. Id. 

3.  Thus  where,  after  the  return  day, 
the  plaintiff  directed  the  deputy 
to  take  notes  and  hold  them  till 
due,  and  then  apply  them  on  the 
execution,  —  Held,   a    recognition 
that  the  execution  was  rightfully 
in  the  deputy's  hands,  consent  for 
his  retaining  it  until  maturity  of 
the  notes,  and  a  waiver  of  the 
accrued  right  of  action  for  non- 
return. Id. 

4.  Corning  v.  Southland  (3  Hill,  552), 
explained  and  approved ;  McKin- 
ley  v.  Tucker  (59  Barb.,  03),  over- 
ruled. Id. 

See  ATTACHMENT,  2,  6,  7,  8,  9. 
BANKRUPT  LAWS,  4. 


EXECUTORS  AND  ADMINIS- 
TRATORS. 

1.  If,  upon  the   presentation  of  a 
claim,  an  executor  does  not  admit 


or  reject  it,  he  must  be  regarded 
as  disputing  it.     Cooper  v.  Felter. 

485 

2.  A  denial  of  allegations,  in  a  peti- 
tion to  the  surrogate,  cannot  be 
regarded   as  allegations    of   new 
matter.  Id. 

3.  It  will  not  be  presumed  that  a 
claim,    against    the    testator   for 
rent,  is  for  the  benefit  of  his  estate ; 
and   where  no  proof   of   actual 
benefit  is  made  or  stated  in  the 
petition  upon  which  the  surrogate 
assumes  to  hear  the  claim,  it  is 
error  if  he  adjudge  it  a  preferred 
claim  under  the  statute.  Id. 

4.  Section  6  of  the  act  of  1870  (chap. 
359)  gives  no  authority  to  surro- 
gates to  try  the  claims  of  creditors 
which  are   disputed  by  an  exe- 
cutor. Id. 

5.  That  section  (§  6)  refers  to  ac- 
counts of  executors  or  administra- 
tors rendered    to  the    surrogate, 
and  was  not  intended  to  deprive 
them  of  the  right  of  trial  of  claims, 
disputed  by  them,  by  jury.       Id. 

See  TRUSTS  AND  TRUSTEES,  10,  11, 
13,  14. 


EXPERT 
Bee  EVIDENCE,  3. 

EXPRESS  COMPANY. 
See  COMMON  CARRIER,  1  to  8. 

FACTOR. 

See  DAMAGES,  3,  4. 

PRINCIPAL  AND  AGENT,  7,  8,  9. 
JUSTICE  OF  THE  PEACE,  1,  3, 

FEDERAL  COURTS. 

See  JURISDICTION,  1. 

REMOVAL  OF  CAUSES,  1,  2. 


INDEX. 


577 


FELON. 
See  WITNESS,  1,  2. 

FELONY. 
See  CRIMINAL  LAW,  9. 

FENCES. 
See  LINE  FENCES,  1. 

FICTITIOUS  PAYEE. 
See  FORGED  CHECK,  2. 

FINDING  OF  FACT. 
See  COMMON  CARRIER,  1, 12. 

FIRE  INSURANCE. 
Sec  INSURANCE,  11  to  15 ;  17  to  22. 

^FORECLOSURE. 

See  Lis  PENDENS,  2. 

TRUSTS  AND  TRUSTEES,  2,  3. 

FOREIGN  CORPORATION. 
See  PLEADING,  2  to  6. 

FOREIGN  LAWS. 
See  USURY,  1. 

FOREIGN  STATUTES. 

See  STATUTE  OF  LIMITATIONS,  1. 
USURY,  1. 

LANSING— VOL.  VI.         73 


FORGED  CHECK. 

1.  A  bank  is  liable  to  a  bona  fide 
holder  in  the  ordinary  course  of 
business  upon  a  forged  check  pur- 
porting to  be  drawn  upon  it,  pay- 
able to  order,  and  which  it  has 
certified.    Hagen  v.  Bowery  JX<it. 
Bank.  490 

2.  The  liability  to  such  holder  at- 
taches upon  the  certification,  and 
it  is  immaterial  whether  the  in- 
dorsement of  the  check  is  that  of 
the  payee  named,  or  whether  a 
fictitious  person  is  named  as  payee. 

Id. 

3.  An  advertisement    of   a   forged 
note   cannot    affect    a   bona  fide 
holder    thereof    unless    brought 
home  to  him.  Id. 


FORGED  NOTE. 
See  FORGED  CHECK,  3. 

FORGERY. 
See  FORGED  CHECK. 

FORWARDER. 
See  COMMON  CARRIER,  5 

FRAUD. 

See  ASSESSMENTS,  6. 
ASSIGNMENT,  1,  2. 
BOND,  2. 

CREDITOR'S  BILL,  2. 
INSURANCE,  8,  9, 10. 
REFORMATION  OF  CONTRACT,  1. 

FRAUDULENT    ASSIGNMENT. 
See  CREDITOR'S  BILL,  2. 

FRAUDULENT  INTENT. 
See  STAMPS. 


578 


INDEX. 


FRAUDULENT   REPRESENTA- 
TIONS. 

See  INSURANCE,  8,  9,  10. 


GRAND  JURY. 

See  CRIMINAL  LAW,  8. 

GRANT. 
See  DEED. 

GRANTOR  AND  GRANTEE. 

See  DEED. 

MORTGAGE,  1. 

TRUSTS  AND  TRUSTEES-,  1  to  7. 


GUARANTOR   AND    GUARAN- 
TEE. 

See  PRINCIPAL  AND  SURETY,  1,  2. 


GUARANTY. 

See  PRINCIPAL  AND  AGENT,  2,  3. 
PRINCIPAL  AND  SURETY,  1,  2. 


GUARDIAN  AD  LITEM. 

See  PARTITION  OF  REAL  ESTATE,  7. 

HOGEBOOM,  HENRY 

See  APPENDIX. 


HUSBAND  AND  WIFE. 

See  DOWER,  2. 

TRUSTS  AND  TRUSTEES,  6. 


IMPEACHMENT  OF  WITNESS. 
See  WITNESS,  3,  4 


IMPLIED  AUTHORITY. 

See  PARTNERSHIP,  1. 

PRINCIPAL  AND  AGENT,  1,  4,  10 
11. 


IMPRISONMENT. 
See  CRIMINAL  LAW,  4  to  8,  9. 

INCUMBRANCER. 

See  ATTACHMENT,  1  to  4. 
Lis  PENDENS,  1  to  5. 

INDEMNITY. 

See  CONTRACT,  4. 

INDICTMENT. 

See  NUISANCE,  1. 

INDIVIDUAL  LIABILITY. 
See  PRINCIPAL  AND  AGENT,  4,  5,  6. 

INFANTS. 

See  EQUITABLE  ACTION,  1. 
PARTITION  OP  REAL  ESTATE, 

7,8. 

INJUNCTION. 

See  COUNTER-CLAIM,  1. 

RAILROAD  MUNICIPAL  BONDS,  1. 
TAXES,  1. 

INN. 

See  INNKEEPER. 

INNKEEPER 

1.  Plaintiffs,  being  the  owners  of  a 
stallion,  agreed  with  defendant,  an 
inkeeper,  that  he  should  be  at  hia 
inn  for  a  ceri  ain  number  of  days 
in  each  week,  during  a  certain 
season,  in  charge  of  one  of  the 
plaintiffs.  Plaintiffs  were  to  have 
the  choice  of  one  of  two  stalls  in 


INDEX. 


579 


the  wagon -house  of  the  inn  for  his 
accommodation.  The  price  of  oats 
and  meals  was  fixed  at  a  lower 
rate  than  customary,  but  there 
was  no  agreement  as  to  the  price 
of  lodging,  hay  or  use  of  stalk 
Pursuant  to  thisagreement,one  of 
the  plaintiffs  took  the  horse  to  the 
defendant's  inn,  and  lodged  and 
took  his  meals  there  on  the  days 
agreed  upon,  kept  the  horse  in  a 
stall  provided,  under  his  own  lock 
and  key,  and  took  care  of  him, 
fed  and  groomed  him,  and  the 
wagon,  harness,  &c.,  of  plaintiffs 
•were  kept  iu  the  wagon-house. 
Held,  that  the  relation  of  inn- 
keeper and  guest  existed  between 
plaintiffs  and  defendant,  and  that 
the  defendant  was,  therefore,  lia- 
ble to  plaintiffs  for  loss,  by  acci- 
dental lire  in  the  wagon-house,  of 
the  horse,  wagon  and  other  pro- 
perty of  plaintiffs,  while  there  in 
pursuance  of  such  agreement. 
Mowers  v.  Tetfier*.  112 

2.  Wadiburn  v.  Jones  (14  Barb.,  193), 
approved  and  followed.  Id. 


INNKEEPER  AND  GUEST. 
See  INNKEEPER. 

INSURANCE. 

1.  The  agreement  in  life  policies  of 
insurance  to  pay  within  a  time 
after  due  notice  and  proof  of  in- 
terest and  death,  does  not  impose 
the  performance  of  a    condition 
precedent  upon  the  owner  of  the 
the  policy,    Hincken  v.  Mut.  Bene- 
fit Life  Ins.  Co..  21 

2.  And  on  the  trial  of  an  action  to 
recover  the  insurance,  evidence  of 
notice  and  proof    given  is  only 
necessary  as  establishing  that  the 
time  of    payment    fixed    by  the 
policy  has  elapsed.  Id. 

3.  Where  preliminary  proofs  have 
been  delivered  to    the  insurer  a 
sufficient  time  before  suit,  and  no 
objections    to    them  are    shown, 
prima  facie  the  proofs  are  suffi- 
cient. Id. 


4.  Non-production  upon  the  trial, 
by  the  insurer,  of  the  proof  shown 
to  have  been  given,  is  evidence 
that  no  objection  to  them  exists. 

Id. 

o.  The  contract  of  insurance  is  an 
exception  to  the  rule  which  denies 
compensation  for  injuries  of  which 
the  party's  own  negligence  or 
want  of  due  care  have  been  the 
primary  cause.  ChampHn  v.  Rail- 
way Passenger  Assurance  Co.  71 

6.  So  held  of  insurance  against  acci- 
dent. Id. 

7.  An    accident    insurance    policy, 
covering    risks    while    traveling, 
held  to  insure  against  an  accident 
which  occurred  while  the  insured 
was  getting  into  a  public  convey- 
ance for  passengers,  while  in  mo- 
tion. Id-. 

8.  In  an  action  by  a  life  insurance 
company  to  recover  back  from  a 
husband,  as  his  wife's  administra- 
tor, the  amount  paid  to  him  upon 
a  policy  of  insurance  upon  the 
life  of  his  wife,  upon  the  ground 
that  the  assured,  the  defendant  and 
plaintiff's  medical  examiner  had 
conspired  to  cheat  and  defraud 
the  plaintiff,  by  means  of  false  and 
fraudulent  representations  in  ob- 
taining the  insurance, — Held  (DAN- 
IELS, J.,  dissenting)^,  that  in  order 
to  maintain  the  action  it  must  ap- 
pear that  the  assured  had  know- 
ledge of  the  existence  of  the  fraud. 
National  Life  Insurance  Company 
v.  Minck.  100 

9.  False     representations,     fraudu- 
lently made  by  others  in  the  appli- 
cation for  insurance,  and  of  which 
the  assured  is  shown  to  have  been 
ignorant,     do     not     charge     the 
assured  with  participation  in  the 
fraud      or     knowledge     of      It 
(DANIELS,  J.,  dissenting.)          Id. 

10  Nor  do  false  and  fraudulent  repre- 
sentations in  the  certificate  of  the 
insurer's  medical  examiner,  made 
without  the  knowledge  of  the 
assured.  Id. 

11.  It  seems  an  insurance  upon  mer- 
chandise or  liquors,  &c.,  held  by 
the  insured  for  sale,  covers  the 


580 


INDEX. 


actual  property  insured,  and  that 
also  of  the  same  description  which 
is  substituted  for  it  after  sales. 
Whitwett  v.  Putnam  Fire  Ins.  Co. 

166 

J2.  And  that  insurance  of  the  liquors 
so  substituted  is  within  the  condi- 
tion of  a  previous  policy,  which 
requires  the  insurer's  consent  to 
other  insurance.  Id. 

]H  Whether,  in  case  of  increase  of 
the  quantity  of  liquors,  a  new  in- 
surance would  be  double  insu- 
rance, the  value  of  the  property 
exceeding  both  insurances,  quere. 

Id. 

14.  Failure  to  obtain    consent    for 
other  insurance  upon  a  part  of  the 
insured  property  avoids  the  insu- 
rance as  to  all  covered  by    the 
policy.  Id, 

15.  A  life  insurance  company's  agent, 
who  had  authority  to  solicit  and 
make  contracts  for  its  insurances, 
agreed  that  his  company  would 
insure  the  plaintiff  by  a  policy 
containing  special  provisions  for 
refunding  the  money  paid  for  pre- 
miums, and  received  the  plaintiff's 
note  in  part  payment ;  the  com- 
pany tendered  a  policy  without 
the  provision,  which  the  plaintiff 
refused.    Held,  that  the  transaction 
did  not  constitute  a  contract  be- 
tween the  plaintiff  and  the  com- 
pany.  Tifft  v.  Phoenix  Mutual  Life 
Insurance  Company.  11)8 

16.  Also,  that  the  plaintiff  could  re- 
cover   from     the    company    the 
amount  of  his  note  and  interest, 
which  he  had  paid  to  a  bona  fide 
holder,  the  transferee  of  the  com- 
pany. Id. 

17.  An    assignment  in  bankruptcy 
(§  14)  works  a  change  of  title  to 
real  property,  within  the  condition 
in  an  insurance  policy  that  a  sale 
or  transfer  or  change  in  title  or 
possession,  by  legal  process,  ju- 
dicial decree,  or  voluntary  trans- 
fer or  conveyance,   shall  render 
the  policy  void.    Perry  v.  Lorillard 
Fire  Ins.  Co.  201 

18.  General  agents  of  an  insurance 
company  have  authority  to  waive 


a  condition  that  other  insurances 
shall  be  indorsed  on  its  policies. 
Pechner  v.  Ph&nix  Ins.  Co.  411 

19.  An  examination  of  the  policy 
issued    by    the   company   by  its 
agent    in  connection  with   other 
policies  on  the  insured  property, 
and  his  assertion  to  the  insured 
that  the  insurance  is  valid, — Held, 
a  waiver  of  the  requirement  that 
the  other  insurances  shall  be  in- 
dorsed. Id. 

20.  So,  also,  failure  of  the  general 
agent  to  object  to  the  omission  of 
the    indorsement  of    other  insu- 
rances upon   notice   thereof,   on 
consenting  to  an  assignment  by 
the  assured  or  renewal,  is  a  Waiver 
of  the  condition.  Id. 

21.  Assent  in  such  case  to  certain 
insurances  extends  also    to  new 
and  different  insurances  in  lieu  of 
them,  taken  at  their  expiration  for 
the  same  aggregate  amount.      Id. 

See  EVIDENCE,  7,  8. 


INSURANCE  AGENT 
See  INSURANCE,  15,  16,  18  to  21. 

INSURANCE  POLICY. 

See  EVIDENCE,  1,  7,  8. 
INSURANCE. 

INTEREST. 

See  TRUSTS  AND  TRUSTEES,  11,  12. 
USURY,  1. 

INTERPLEADER. 

See  TAXES,  1. 

INTERPRETATION  OP  DEED. 
See  DEED,  1  to  5. 

IRREGULARITY. 

See  PARTITION  OP  REAL  ESTATE,  7 
toll. 


INDEX. 


JOINDER  OF  CAUSES   OF 
ACTION. 

See  TRUSTS  AND  TRUSTEES,  11. 


JOINDER  OF  PARTIES. 

See  EOUITABLE  ACTION,  3. 

THUSTS  AND  TRUSTEES,  8, 10, 12. 


JOINT  CONTRACT. 
See  STATUTES  OF  LIMITATION,  2, 3. 

JOINT  DEBTORS. 

Set!  PRACTICE,  1. 

TRUSTS  AND  TRUSTEES,  9, 10, 11. 

JOINT-STOCK  COMPANY. 
See  COMMON  CARRIER,  7. 

JOINT  TENANTS. 
See  TENANTS  IN  COMMON,  1. 

JUDGMENT. 

See  ATTACHMENT,  1. 
BOND,  1. 
Lis  PENDENS,  1. 
PRACTICE,  1. 

i 

JUDGMENT  DEBTOR 

See  ATTACHMENT,  2,  7  to  10. 
CREDITOR'S  BILL,  1, 2. 

JUDICIAL  ACTION. 

See  ASSESSORS,  8  to  12. 

JURISDICTION. 

The  State  courts  of  common  law 
have  jurisdiction  in  causes  of  ac- 
tion arising  within  admiralty  ju- 
risdiction, where  a  remedy  exists 
at  common  law,  although  the 
cause  of  action  is  not  recognized 


by  the  common  law,  but  is  given 
entirely  by  the  State  statutes.  So 
held  in  view  of  the  acts  of  congress 
of  1789  and  1845  (1  U.  S.  Stats,  at 
Large,  p.  76,  §  9;  5  id.,  pp.  726, 
727).  Dougan  v.  Champlain  Trans. 
Co.  430 

See  ASSESSMENT  ROLL,  4 
ASSESSORS,  2,  8  to  12. 
CRIMINAL  LAW,  4  to  8. 
JUSTICE  OP  THE  PEACE,  1  to  5. 
PARTITION  OF  REAL  ESTATE,  7. 


JURY  TRIAL. 

See  CONSTITUTION  CONSTRUED,  4. 
EXECUTORS  AND  ADMINISTRA- 
TORS, 5. 


JUSTICE  OF  THE  PEACE. 

1.  Where  a  justice  of  the  peace  mis- 
takenly determines  that  an  offence 
has  been  committed  and  that  there 
is  probable  cause  against  the  ac- 
cused, and  issues  his  warrant  for 
arrest,  an  action  for  false  impri- 
sonment will  not  lie  for  the  error 
against  the  complainant.     Davis 
v.  Rose.  206 

2.  A  warrant  is  sufficient  protection 
if  it  charges  a  crime,  although  in 
general  terms.  Id. 

3.  Mere  delivery  of  a  warrant,  be- 
lieved to  be  valid,  by  the  com- 
plainant to   the  officer  by  whom 
it  is  executed,  will  not  subject  to 
an  action  for  false  imprisonment. 

Id. 

4.  Otherwise  where  the  warrant  is 
delivered  with  directions   to  ar- 
rest, if  it  is  void.  Id. 


LABOR. 

See  EVIDENCE,  21. 
SERVICES. 
WITNESS,  9. 


LANDLORD  AND  TENANT. 

1.  One  occupying  a  house  as  servant 
of  the  owner,  upon  termination  ol 


582 


INDEX. 


the  service  was  permitted  to  retain 
possession,  upon  payment  of  rent, 
until  the  condition  of  his  wife 
should  allow  her  removal.  Held, 
that  the  duration  of  the  occupancy 
depending  on  a  contingent  future 
event,  the  relation  of  tenancy  at 
will  or  by  sufferance  did  not  arise 
between  the  parties.  Doyle  v. 
Gibb*.  180 

2.  Held,  also,  that  the  occupant  held 
under  a  mere  license  for  the  time 
agreed,  and  no  notice  to  quit  was 
necessary.  Id. 

3.  Crops  sown  during  a  lease,  which 
cannot  mature  until  after  the  term, 
may  not  then  be  gathered  by  the 
lessee.     Clarke  \.Itnnnie.         210 

4.  Evidence  that  one  acting  as  the 
lessor's  agent  to  receive  the  avails 
of  a  portion  of  the  crops  due  from 
the  tenant  under  the  lease,  had 
permitted  the  lessee  to  sow  the 
crop,  will  not  support  the  lessee's 
claim  to  reap  after  the  term.      Id. 

5.  Nor  will  the  lessee's  testimony 
that  he  had  informed  the  lessor, 
upon  inquiry  at  1  he  time  of  sow- 
ing, what  and  where  he  intended 
to  sow,  support  a  verdict  against 
the  lessor  for  the  crop  on  his  re- 
fusal to  allow  the  lessee  to  gather 
it  after  the  term,  and  especially  if 
contradicted  by  other  testimony. 

Id. 

See  PRINCIPAL  ATSTD  AGENT,  10. 


LEASE. 
See  LANDLORD  AND  TENANT. 

LEGISLATIVE  POWERS. 

See   CONSTITUTION    CONSTRUED,   1 

to  4. 
NUISANCE,  1. 

LESSOR  AND  LESSEE. 
See  LANDLORD  AND  TENANT. 


LETTER. 
See  EVIDENCE,  16. 

LEX  LOCI  CONTRACTU. 
See  USURY,  1. 

LICENSE. 
See  LANDLORD  AND  TENANT,  1,  2. 

LIEN. 
See  PRINCIPAL  AND  AGENT,  8,  9. 

LIFE  ESTATE. 
See  TRUSTS  AND  TRUSTEES,  12. 

LIFE  INSURANCE. 
See  INSURANCE,  1  to  5, 8, 9, 10, 15, 16. 

LIFE  TENANT. 
See  DEVISE,  1. 

LIMITATIONS,  STATUTE  OP. 

See  STATUTE  OF  LIMITATIONS. 

LINE  FENCES. 

Plaintiff  and  defendant  occupied 
adjoining  lands.  Plaintiff  removed 
a  portion  of  the  line  fence  between 
them  and  notified  defendant  that 
he  had  done  so,  and  to  remove  his 
cattle,  which  defendant  did  not 
do,  but  shortly  afterward  removed 
the  remainder  of  the  fence.  Held, 
that  defendant  was  liable  for  dam- 
age done  to  plaintiff's  field  by  the 
cattle,  after  the  entire  fence  be- 
tween them  had  been  removed. 
Van  Slyck  v.  Snell.  298 

LIQUIDATED  DAMAGES. 
See  CONTRACT,  4. 


INDEX. 


583 


LIS  PENDENS. 

1.  Whether  that  clause  of  section 
132  of  the  Code,  which  declares  a 
grantee  and  incumbrancer  whose 
conveyance  or  incumbrance  is  re- 
corded, after  filing  a  lis  pendens,  a 
subsequent  purchaser  or  incum- 
brancer, applies  to  a  lis  pendens 
filed  in  case  of  an  attachment, 
doubted.  tPer  MULLIN,  P.  J.) 
v.  Cheshire.  234 


3.  And  qnere,  whether  the  applica- 
tion of  the  clause  is  not  limited  to 
actions  of  foreclosure.  Id, 

3.  Possession  of  real  property  is  no- 
tice, to  a  purchaser  at  execution 
sale  upon  judgment  in  an  action 
where  such  property  is  attached 
and  a  lis  pendens  filed,  of  the  pos- 
sessor's title.  Id. 

4.  The  implied  notice  of    title  by 
possession  has  the  same  effect,  in 
such  case,  as  in  the  case  of  a  con- 
veyance. Id. 


LOCKPORT. 
See  MANDAMUS,  1,  2. 

MANAGING  AGENT. 
See  ATTACHMENT,  4,  5. 

MANDAMUS. 

1.  The  charter  of  the  city  of  Lock- 
port  provides  for  the  presentation 
of  accounts  against  the  city  to  the 
common  council,  and  that  they 
shall  be  referred  to  a  committee 
xvho  shall  examine  into  them  and 
report  favorably  or  adversely  to 
their  allowance,  with  their  rea- 
sons ;  and  that  the  common  coun- 
cil shall  then  hear,  examine  and 
determine  upon  the  same,  in  like 
manner  as  a  board  of  town  audit- 
ors. If  the  claim  is  allowed,  the 
common  council  are  to  make  an 
order  for  its  payment,  &c.  Held, 
an  account  against  the  city 
having  been  presented  against  the 
common  council  and  by  them  re- 
ferred to  the  proper  committee, 


who  did  not  report  thereupon  for 
more  than  seven  months  after  its 
presentation,  that  the  claimant 
was  not  obliged  to  proceed  by 
mandamus  to  compel  the  common 
council  to  examine  and  allow  the 
claim  and  make  an  order  for  its 
payment,  but  that  an  action  would 
lie  therefor  against  the  city.  Buck 
\.TheCityofLockport.  251 

,  The  case  of  corporations  and 
ministerial  officers  is  an  exception 
to  the  general  rule  that  a  manda- 
mus will  not  lie  where  the  party 
has  a  remedy  by  action.  They 
may  be  compelled  to  exercise  their 
functions  according  to  law  by 
mandamus,  even  though  the  party 
has  another  remedy  by  action  for 
neglect  of  duty.  Id. 

See  RELIGIOUS  CORPORATION,  1. 


MAP. 

See  DEED,  4. 

• 

MARINE  INSURANCE. 
See  EVIDENCE,  7, 8. 

MARINE  TORTS. 
See  JURISDICTION,  1. 

MARRIED  WOMAN. 

See  DOWER,  1,  2.  . 

EQUITABLE  ACTION,  2. 
TRUSTS  AND  TRUSTEES,  6. 

MEASURE  OF  DAMAGES. 
See  DAMAGES. 

MEMBER  OF  FAMILY. 
See  SERVICES. 

MEMORANDUM. 
See  EVIDENCE,  13,  20,  21. 


584 


INDEX. 


MILITARY  COURT. 

CONSTITUTION  CONSTRUED,  1  to 

7. 


MILITIA. 

See  CONSTITUTION  CONSTRUED,  1  to 

7. 


MILL-DAM. 
See  MILLS,  5. 

MILL-POND. 

See  MILLS,  1  to  6. 

MILL-RACE. 

See  MILLS,!,  2,  3. 

MILLS. 

1.  The  purchaser  of  a  mill  and  mill- 
pond,  with  an  easement_for  run- 
ning the   water   from  the  pond 
through  a  race-way  over  adjoining 
land,  is  not  restricted  in  maintain- 
ing the  race  to  the  condition  in 
which  it  was  at  the  time  of  his 
purchase,  but  acquires  the  right 
to  make  necessary  improvements 
to  the  full  enjoyment  of  the  ease- 
ment.   JBeals'v.  Stewart.  408 

2.  Where   the   purchaser   removed 
deposits  in  the  race-way  to  the 
sides  thereof,  and  lowered  its  bed 
to  its  original  depth,  and  below 
the  depth  at  the  time  of  the  pur- 
chase,— Held,    that    the    removal 
being  a  necessary   improvement 
to    the    right    to    discharge    the 
waters  from  the  pond,  he  was  not 
liable  in  trespass  to  the  owner  of 
the  servient  estate.  Id. 

3.  Held,  also,  that  the  act  was  in 
the  nature  of  a  repair  to  the  ditch 
and  authorized  as  such.  Id. 

4.  The  right  to  use  a  pond  as  a  mill- 
pond  includes  the  right  to  float 
logs  in  the  pond  for  the  use  of  the 
mill.  Id. 


5.  While  the  servient  estate  be- 
longed to  the  plaintiff's  grantee  an 
encroachment  was  made  thereon 
by  the  dam  of  the  dominant 
owner.  Held,  that  the  plaintiff 
could  not  maintain  trespass,  but 
must  sue  in  ejectment.  Id. 

See  EASEMENT,  1  to  5. 


MINISTERIAL  OFFICERS. 
See  MANDAMUS,  3. 

MINOR  CHILD. 

See  SERVICES. 
WITNESS,  9. 

MISDEMEANOR. 
See  NUISANCE,  1. 

MISREPRESENTATIONS. 
See  INSURANCE,  8,  9,  10. 

MISTAKES  OF  LAW  AND  FACT. 

1.  To  a  complaint  on  promissory 
notes,   the  defendant  set   up    in 
defence  a  failure  of  consideration, 
for  the  reason  that  the  notes  were 
given  for  exclusive  ferry  rights 
which  the  payee  held  under  a  city 
ordinance,  which  proved,    upon 
judicial  determination,  ultra  vires 
of  the  city  corporation.    Held,  no 
defence,  and  demurrable  for  that 
reason.   Oarpentier  v.  Minturn,  56. 

2.  Also,   that  the   mistake    of    the 
vendor  and  vendee  was  in  regard 
to  a  general  law  of  the  land.     Id. 

3.  Plaintiff  hired  K.,  a  cartman,  to 
transport  goods  from  the  freight- 
house  of  the  defendant,  a  railroad 
company,  over  whose  road  they 
had   been    shipped,   and    deliver 
them  at  his  store  at  a  certain  price 
per  ton,  giving  him  no  authority 
to  pay  the  freight  upon  the  goods. 
K.  paid  out  of  his  own  money,  on 
delivery  of  the  goods  to  him,  de- 
fendant's bill  for  the  freight  there- 


INDEX. 


585 


upon,  and  collected  the  amounts 
so  paid  from  plaintiff,  without  his 
knowledge  that  K.  had  advanced 
the  charges.  These  bills  for  freight 
included  "  back  charges  "  paid  by 
the  defendant  for  freight  upon 
connecting  roads,  which  were 
falsely  made  out  by  defendant's 
clerk  having  charge  of  the  busi- 
ness, by  overcharging  the  amounts 
which  defendant  had  so  paid. 
Held,  that  plaintiff  could  not 
recover  back  the  over  payments, 
on  the  ground  that  they  were 
made  by  mistake,  and  that  plain- 
tiff had  no  knowledge  or  means  of 
knowledge,  at  the  time  of  the  pay- 
ment, of  their  incorrectness,  as  the 
payments  were  not  made  by  him 
nor  with  his  money,  and  K.  was 
not  his  agent  to  make  such  pay- 
ments. Worthingion  v.  New  York 
Central  R.  K  Co.  257 

See  BOND,  2. 
STAMPS. 


MOB. 
See  TENANTS  IN  COMMON,  1. 

MORTGAGE. 

1.  Pursuant  to  a  parol  agreement 
between  plaintiff  and  E.,  and  in 
consideration  of  a  certain  sum 
advanced  by  E.  to  her,  a  deed  was 
executed  by  plaintiff  of  certain 
premises  owned  and  possessed  by 
her,  reciting  the  receipt  of  a  valu- 
able consideration,  in  which  the 
wife  of  E.  was  named  as  grantee. 
At  the  same  time  with  the  execu- 
tion of  the  deed,  E.  executed  an 
agreement  in  writing  and  under 
seal,  by  which  he  for  value  re- 
ceived agreed  that  plaintiff  should 
have  the  sole  and  undivided  use  of 
the  premises  conveyed  by  the  deed 
during  her  natural  life ;  and,  fur- 
ther, that  she  might  sell  the  same 
at  any  time  by  paying  to  E.  a  sum 
named,  without  interest.  This 
agreement  was  delivered  to  plain- 
tiff, who  simultaneously  delivered 
to  E.  the  d-ed.  The  wife  of  E. 
was  not  present  at  the  transaction, 
and  it  did  not  appear  that  she  h;id 
at  the  time  any  knowledge  of  it. 

LA.NSIXG — VOL.  VI.  74 


Plaintiff  continued  in  possession 
of  the  property  until  it  was  con- 
veyed with  warranty  by  E.  and 
his  wife  to  defendant,  who  had 
actual  notice  before  his  purchase 
of  the  agreement  between  E.  and 
plaintiff.  Defendant  then  took 
possession  of  the  property. 
2.  Held,  that  the  deed  and  agreement 
were  to  be  construed  together  as 
one  instrument,  and  were  in  legal 
effect  a  mortgage ;  that  by  the 
conveyance  to  him  defendant  be- 
came only  an  assignee  thereof, 
and  that  plaintiff  was  entitled  to 
recover  the  possession  of  the  pre- 
mises. Decker  v.  Leonard.  264 


MORTGAGOR  AND  MORT- 
GAGEE. 

See  MORTGAGE. 


MOTION. 

See  ATTACHMENT,  7,  8,  9. 
BANKRUPT  LAWS,  3,  4. 
EVIDENCE,  23. 


MUNICIPAL    CORPORATIONS. 

See  ASSESSMENTS. 
MANDAMUS,  1  to  4. 


NATIONAL  BANKS. 
See  PRINCIPAL  AND  AGENT,  4  to  7. 

NEGLIGENCE. 

1.  A  railroad  company  is  guilty  of 
gross  negligence  in  leaving  a  hole 
in  the  floor  of  the  depot,  where 
its  passengers  are  accustomed  to 
alight  from  its  cars,  thus  render- 
ing their  landing  unsafe.    Lixcomb 
v.  N.  J.  R.  It.  and  Transportation, 
Co.  75 

2.  The    plaintiff's    intestate,    while 
driving  rapidly  over  the  defend- 
ant's street-crossing   in  a    heavy 
storm    of    snow  and    wind,   was 
struck  by  its  train  of  cars  and  in 


INDEX. 


stantly  killed.  The  crossing  was 
at  an  elevation  above,  and  visible 
for  half  a  mile  along,  the  street, 
and  near  it  approaching  trains 
could  be  seen  at  the  distance  of 
1,400  feet.  Notice  of  the  cross- 
ing had  been  removed,  and  the 
train  approached  at  a  speed  of 
twenty  miles  per  hour  without 
signal,  by  bell  or  whistle.  The 
deceased  had  occasionally  driven 
over  the  crossing;  and  a  teamster, 
whom  he  passed  just  before  reach- 
ing it,  and  who  saw  the  train, 
called  to  him  to  stop,  and  the 
call  was  heard  by  one  seven  or 
eight  rods  from  the  crossing.  An- 
other standing  on  the  street  ten 
rods  from  the  track  noticed  the 
train  when  some  six  rods  from 
the  crossing,  but  a  cart  had  just 
passed  over  and  the  driver  neither 
saw  nor  heard  it  before  crossing, 
nor  on  account  of  the  storm  could 
he  see  beyond  his  horses'  heads 
without  a  sharp  look-out.  Hdtl, 
in  an  action  by  the  administrator 
to  recover  against  the  company, 
that  the  question  of  contributory 
negligence  should  have  been  sub- 
mi  Lted  to  the  jury,  and  a  nonsuit 
was  error.  Hdckford  v.  N.  T. 
Central  E.  R.  Co.  '  381 

8.  In  an  action  to  recover  on  the 
ground  of  the  defendant's  negli- 
gence, the  plaintiff  need  not  allege 
or  make  proof  that  he  is  free  from 
concurrent  negligence.  Id. 

4.  But  it  seems,  if  on  the  trial  there 
is  evidence    of    plaintiff's    negli- 
gence, from  his  own  or  defend- 
ant's witnesses,  he  must  disprove 
it  to  entitle  himself  to  a  recov- 
ery. Id. 

5.  Plaintiff's  intestate,  a  passenger 
upon  defendant's  boat,  went  upon 
the  outer  lower  deck,  outside  the 
weather  door,  upon  a  cold  night, 
where  the  water  thrown  upon  the 
deck  by  the  wind  was  freezing, 
and  his  hat  having  blown  off,  in 
an  effort  to  save  it  slipped  and 
fell.      The  gangway  of   the  boat 
was   entirely  open    excepting    a 
bar  at  the  top,  and  through  this 
he    slipped    overboard    and    was 
drowned.      There  ,was    a  water 
clo.set   on  the  outer*  part  of  the 
lower  tiec'k  designed  for  the  use 


of  the  crew,  and  he  had  remarked 
that  he  was  going  out  there  to  use 
this.  There  was  also  another  wa- 
ter closet  inside  the  weather  door 
for  passengers'  use,  with  a  sign  in- 
dicating its  purpose,  but  it  did  not 
appear  that  deceased  knew  of  this, 
and  there  was  no  prohibition  up- 
on the  use  of  the  outer  one  by 
passengers,  The  boat  at  the  gang- 
way was  from  thirty  to  forty  feet 
wide,  sloping  slightly  from  the 
center  to  the  bulwarks,  and  the 
gangway  was  from  eight  to  nine 
feet  wide,  lldd,  that  the  omis- 
sion of  a  more  perfect  guard  at 
the  gangway  was  not  such  negli- 
gence on  the  part  of  the  company 
as  made  them  liable  for  the  ac- 
cident. Douyan  v.  Champlain 
Trans.  Co.  430 

6.  Held,  also,  that  the  defendant's 
negligence  under  the  circumstan- 
ces must  be  held  to  have  contrib- 
uted to  the  accident.  Id. 


See  CANAL  CONTRACTOR,,  1. 
COMMON  CARRIER,  1  to  8. 
INNKEEPER, 
INSURANCE,  5,  6,  7. 
NUISANCE,  1,  2. 


NONSUIT. 

See  NEGLIGENCE,  2. 

NOTES  AND  BILLS. 

1.  It  is  admissible  as  a  defence  to  an 
action  on  a  note,  to  show   that  it 
was  given  for  the  loan  of  moneys 
obtained  on  a  sale  of  stolen  govern- 
ment bonds.    Porter  v.  Knapp.  125 

2.  Proof  of  this  defence  casts  upon 
defendant  the    onus  of    showing 
himself  a  bona  fide  owner.        Id. 

3.  The  right  of  stoppage  in  transitu 
is  applicable  to  bills  of  exchange. 
Mutter  v.  Pondir.  472 

4.  So  held  of  bills  purchased  by  the 
sender   with   his   own  funds,  but 
upon  the  request  and  for  the  bene- 
fit of  the  person  to  whom  they 
were  sent.  Id 


INDEX. 


587 


5.  One  who  has  obtained  knowledge 
of  a  private  communication  ad- 
dressed to  another  party  cannot 
claim  to  estop  the  person  making 
the  communication  by  statements 
therein  contained.  Id. 

6.  Accordingly  held,  that  a  telegram 
from  the  sender  of  such  bills  of 
exchange,  informing  the  person  to 
whom  they  are  sent  of  the  trans- 
mission,  and  describing  the  cha- 
racter of  the  bills,  is  not  such  an 
admission  of  the  latter's  ownership 
that,   if  he  obtains  credit  on  the 
strength  of  the  telegram,   it  will 
estop  the  sender  from  reclaiming 
the  bills  in  transitu.  Id. 

7.  Such  a  telegram  has  none  of  the 
qualities  of  a  bill  of  lading,  and  a 
transfer  of  it  does  not  cut  off  the 
sender's  rights  in  transitu.          Id. 

8.  A    transfer    of   negotiable  bills, 
without  indorsement  by  the  payee, 
confers  no  other  rights  than  those 
of  the  transferrer.  Id. 

9.  An  agreement  of  the  person  to 
whom  bills  of  exchange  have  been 
sent  to    hand    them    over    when 
received,  is  not  a  present  transfer, 
delivery  or  assignment  of  them. 

Id. 

10.  Without  the  means  of  obtaining 
possession  of  bills  of  exchange, 
one  who  claims  them  as  security 
for  a  loan  by  title  from  the  party 
to  whom    they  were    sent,     and 
against  the  sender,  cannot  before 
delivery  be  a  pledgee  of  them.  Id. 

See  EXECUTION,  8. 
FORGED  CHECK,  3. 
INSURANCE,  15,  16, 
PARTNERSHIP,  1. 
PRINCIPAL  AND  AGENT, 

1,  2,  3. 
STAMPS. 


NOTICE. 

See  EVIDENCE,  6. 
FORGED  CHECK,  3. 
LANDLORD  AND  TENANT, 

1,  2. 

LIB  PENDENS,  3,  4. 
STOCK  BROKER,  1,  2. 
TENANTS  IN  COMMON,  1. 


NOTICE    OF    PENDENCY    OF 
ACTION. 

See  ATTACHMENT,  1  to  4. 
LIB  PENDENS,  1  to  5. 


NOTICES. 
Sea  DOWER,  3. 

NUISANCE. 

1.  A  company,  authorized  by  the  leg- 
islature to  manufacture  gas  to  be 
used  for  lighting  streets  and  build- 
ings, cannot  be  indicted  for  cre- 
ating a  nuisance  by  unwholesome 
smells,  &c.,  if  its   buildings   and 
processes  are  of  the  best  kind,  its 
servants  careful,  and  due  skill  and 
diligence  are  used  in  its  business. 
People  v.  Prest.,   t&c.,  N.    T.  Gas- 
light Co.  467 

2.  A  suit  may,  it  seems,  be  main- 
tained against  the  company  for  a 
special  injury  to  a  private   indi- 
vidual caused  by  their  works.    Id. 


NURSERYMAN. 
See  WARRANTY  OF  CHATTELS,  1,  2, 3. 

OFFICER. 

See  ASSESSMENT  ROLL,  3. 

COUNTY  TREASURER,  1  to  7. 
EXECUTION,  1  to  5. 

OFFICER  OF  CORPORATION. 
See  PRINCIPAL  AND  AGENT,  4,  5,  6. 

ONUS  PROBANDI. 

See  EVIDENCE,  15. 

NOTES  AND  BILLS,  1,  2. 

^OPINION. 
See  EVIDENCE,  19. 


588 


INDEX. 


PARENT  AND  CHILD. 

See  SERVICES. 
WITNESS,  9. 


PAROL  EVIDENCE. 

See  EVIDENCE,  16, 17. 

PARTIES  TO  ACTION. 

See  COMMON  CARRIER,  7. 
EQUITABLE  ACTION,  3. 
TRUSTS  AND  TRUSTEES,  3. 

PARTITION  OF  REAL  ESTATE. 

1.  Where  the  fee  simple,'  and  every 
equitable  title  to  lands,  was  vested 
in  the  parties  to  an  action  for  its 
partition, — Held,  that  the   action 
would  lie.   Herbert  v.  Smith.    493. 

2.  The  vendee  of  lands  under  a  con- 
tract for  purchase  at  a  large  price, 
died,  after  payment  of  a  portion 
of  the  purchase-money,  leaving  a 
still  greater  balance  unpaid;  his 
administrators  advanced  their  own 
funds  partly,  with  those  of  the 
intestate,  and  took  a  deed  to  them- 
selves   individually,    which    they 
claimed  to  hold  only  as  security 
for  their  advances.     Held,  that  an 
action  for  partition,  between  all 
the  legal  and  equitable  owners  of 
the  lands,  could  be  maintained. 

Id. 

3.  And  it  seems  equity  would  enter- 
tain an  action  iipon  a  complaint 
setting  forth  the  facts,  and  to  which 
all  interested  were  parties  and  de- 
cree a  sale,  in  the  nature  of  a  par- 
tition, and  a  division  of  the  pro- 
ceeds. Id. 

'   *  V  - 

4.  An  omission  of  proof  of  the  send- 
ing by  mail  a  copy  of  the  summons 
and  complaint,  on  service  by  pub- 
lication, may  be  supplied  by  order 
directing  the  filing  of  such  proof 
nunc  pro  tune,  made  after  decree. 

Id. 

5.  The  Code  requires  publication  of 
a  summons  to  be  made  continu- 


ously in  each  paper,  but  not  con- 
currently. Id. 

6.  The  service  is  not  complete  until 
forty-two  days  after  the  first  inser- 
tion in  the  paper  last  making  pub- 
lication. Id. 

7.  Questions  in  a  partition  suit,  re- 
specting the  suitableness  of   the 
guardians  ad  litem  appointed  by 
the  court,  their  attention  to  the 
interests  of  the  infants,  the  money 
advanced    by    administrators    on 
behalf  of  the  infants,  the  amount 
of  the  estate,  etc.,  do  not  affect 
the  jurisdiction  of  the  court  or 
regularity   of    the  sale,    and    are 
not    grounds    upon    which    pur- 
chasers of  the  lands  can  be  relieved 
from  their  purchase.  Id. 

8.  Where  the  referee,  to  make  a  par- 
tition sale,  has  not  followed  the 
decree  in  respect  to  the  terms  of 
sale,  the  court  may,  upon  proof 
that  thtj  deviation  was  not  preju- 
dicial to  the  infants,  but  desirable 
for  their  interests,  direct  a  modifi- 
cation of  the  decree  nunc  pro  tune. 

Id. 

9.  A  question,  of  such  a  deviation 
from  the  decree,  being  as  to  regu- 
larity of  practice  only,  and  not 
one  on   which  the  court  would 
have  intervened  after  the  sale,  is 
not  one  with  which  the  purchaser 
has  any  concern.  Id. 

10.  Where  the  referee  adjourns  the 
the  sale  in  partition,  after  sales  of 
part  of  the  premises,  to  a  particu- 
lar time,  and  upon  confirmation  of 
the  sales  made  the  court  directs 
the  sale  of  the  remaining  premises 
to  stand  over  to  a  future  time,  the 
adjournment  of  the  referee  is  nul- 
lified, and  a  sale  at  a  later  day 
than  the  day  appointed  by  adjourn- 
ment made  upon  publication  of 
notice  for  six  weeks  as  directed  by 
the  decree,  is  regular.  '    Id. 

LI.  An  allegation  by  the  purchaser, 
that  mortgages  exist  upon  the  pro- 
perty purchased  which  the  referee 
was  not  prepared  to  satisfy  at  the 
time  for  the  delivery  of  the  deed, 
is  met  by  proof  that  the  amount 
to  be  paid  by  the  purchasers  was 
sufficient  to  extinguish  the  mort- 
gages, and  that  the  holders  wert 


1XDEX. 


589 


at  hand  to  receive  the  money  and 
satisfy  their  liens.  Id. 

12.  A  suggestion  that  the  title  is  de- 
fective because  it  came  through  a 
grantee  who  had  purchased  in  his 
own  right,  forty  years  since,  while 
he  stood  in  the  relation  of  trustee 
of  the  property,  where  no  evidence 
is  offered  to  show  that  the  trustee 
did  not  account  to  his  ce&tui  que. 
tmst,  the  property  having  been 
often  since  tranferred  by  his  and 
subsequent  grantees,  is  not  mate- 
rial. Id. 


PARTNERSHIP. 

The  rule  which  authorizes  one  mem- 
ber of  a  copartnership  to  bind  the 
firm  by  commercial  paper,  is  only 
applicable  to  business  of  a  trading 
or  commercial  nature,  or  to  the 
ordinary  business  of  buying  or 
selling  for  a  profit.  It  has  no  ap- 
plication to  partnerships  formed 
for  agricultural  purposes  or  others 
of  a  similar  character.  Hunt  v. 
Chnpin.  139 

See  BOND,  3. 

COMMON  CARRIER,  7. 
COUNTER-CLAIM,  3,  4. 


PARTY  TO  MOTION. 
See  ATTACHMENT,  9. 

PATENT  RIGHTS. 
See  PRINCIPAL  AND  AGENT,  2,  3. 

PAYEE. 
See  FORGED  CHECK,  1,  2. 

PAYMENT. 
.S?€  STATUTE  OF  LIMITATIONS,  2,  3. 

PETITION. 

See  EXECUTORS  AND  ADMINISTRA- 
TORS, 2. 
REMOVAL  OF  CAUSES,  1,  2. 


PLEADING. 

1.  Objection  to  the    plaintiff's   ca- 
pacity to  sue  must  be  by  answ^, 
unless  the    complaint    shows  an 
absence  of  such  capacity.     Bar- 
duy  v.  Quicksilver  Mining  Co.     25 

2.  One  who  stands  in  the  position  of 
an  assignee  for  non-resident  credi- 
tors, under  foreign  appointment, 
may  sue  here  to  avoid  a  transfer 
by  his  predecessor  in  title,  fraudu- 
lent against  the  cestuis  que  trust, 
without    showing,    by    his    com- 
plaint, authority  under  the  foreign 
laws  to  maintain  the  action ;  and, 
it  seems,  although  forbidden  by 
the  foreign  laws.  Id. 

3.  It  seems  that  receivers  or  trustees 
of  foreign  corporations  may  sue 
to  recover  property  situate  in  this 
State,  subject  to  the  qualification 
that  the   foreign    law    shall    not 
divest  the  title  fairly  acquired  of 
citizens  here.  Id. 

4.  Accordingly    held,    that    a  com- 
plaint by  the  sequestrator  of   a 
corporation,  showing  his  due  ap- 
pointment   under    the    laws    of 
Pennsylvania,     and    seeking    re- 
covery of  property  of  the  foreign 
corporation  fraudulently  conveyed 
to  a  corporation  here,  no  citizen 
of  this  State  appearing  to  be  in- 
terested as  creditor,  &c.,  was  not 
demurrable  for  the  plaintiff's  lack 
of  capacity  to  sue.  Id. 

5.  It  is  sufficient  if  the  complaint 
contain  a  substantial  averment  of 
the  plaintiff's  ownership  of    the 
estate,  without  setting    forth  the 
laws  under  which  he  became  en- 
titled. Id. 

See  COMMON  CARRIER,  1,  2. 
COUNTER-CLAIM,  1,  3,  4. 
EXECUTORS   AND  ADMINISTRA- 
TORS, 2. 

NEGLIGENCE,  3. 
RAILROAD  MUNICIPAL  BONDS,  1. 
REFORMATION  OF  CONTRACT  2. 


PLEDGE. 

Sec  BROKER,  1  to  5. 

NOTES  AND  BILLS,  10. 


590  INDEX. 

POLICY  OF  INSURANCE. 

See  INSURANCE. 


POSSESSION    OF   REAL    PRO- 
PERTY. 

See  EQUITABLE  ACTION,  1. 
Lis  PENDENS,  3,  4. 
MORTGAGE,  1. 


POWERS. 
See  TRUSTS  AND  TRUSTEES,  13,  14. 

PRACTICE. 

1.  A  joint  judgment  against  several 
in  an  action  of  tort  may,  on  ap- 
peal, be  reversed    as  to   one  or 
more    of     the     defendants    and 
affirmed  as  to  the  others.       Van 
Slyck  v.  Snell.  299 

2.  A  misunderstanding  or  mistake, 
in  regard  to  matters  of  agreement, 
upon  argument  at  Special  Term  is 
not  a  subject  for  review  upon  ap- 
peal.    Herbert  v.  Smith.  493 

See  ATTACHMENT,  4  to  10. 
COUNTER-CLAIM,  1. 
CRIMINAL  LAW,  1  to  9. 
DAMAGE,  5. 
EVIDENCE,  22. 
MANDAMUS,  1  to  4. 
PARTITION  OF  REAL  ESTATE,  1 

to  12. 

REFORMATION  OF  CONTRACT,  2. 
TRUSTS  AND  TRUSTEES,  7  to  13. 
WITNESS,  5,  6. 


PRACTICE  IN  CRIMINAL 

CASES. 

See  CRIMINAL  LAW,  1,  2,  3. 


PRACTICE  ON  APPEAL. 

See  PIVACTICE,  1. 
DAMAGES,  5.  ' 
WITNESS,  5,  6. 


PREFERENCE. 


See  EXECUTORS  AND  ADMINISTRA- 
TORS, 


PREFERRED  CLAIM. 

See  EXECUTORS  AND  ADMINISTRA- 
TORS, 3. 


PRESCRIPTION. 

See  EASEMENT,  1. 

PRESUMPTION. 

See  DEED,  1,  2,  3. 

INSURANCE,  1  to  5. 
NOTES  AND  BILLS,  1,  2. 
RESIDENCE,  1. 

PRINCIPAL  AND  AGENT. 

1.  A  note  given  by  an  agent  for 
money,  which  he  represents  to  the 
payee  is  to  be  used  in  the  business 
of  the  principal,  but  which  is  in 
fact  applied  by  him  to  his  own 
use,  does  not  bind  the  principal 
unless  it  appears  either  that  the 
agent    has    express    authority  to 
execute    the    note,   or  that  such 
authority  may  be  implied  from  the 
general  scope  of  the  agent's  em- 
ployment, or  from  some  custom 
of  the  business  in  which  he  is 
engaged.    Hunt  v.  (Jhapin.       139 

2.  An  agent,  for  the  sale  of  rights 
under  a  patent,  agreed  to  take  a 
note  to  his  principal  on  such  a 
sale,  and  then,  with  the  principal's 
authority,  agreed  to  trade  the  note 
for  merchandise  on  his  own  ac- 
count with  the  plaintiff,  with  an 
unwritten  guaranty  of  its  good- 
ness and  collectibility ;  the  note 
was  afterward  issued  to  the  prin- 
cipal   or    bearer,    and    delivered 
by  the  agent,  as  agreed,  to  the 
plaintiff,  inpayment  f  or  goods  fur- 
nished.    Held,  that  the  agent  acted 
as  agent  in  transferring  the  note, 
and  the  guaranty  bound  his  prin- 
cipal.    Lossi-i:  v.  Williams.          228 


INDEX. 


591 


3.  Held,  also,  that  the  guaranty  was 
not  within  the  statute  of  frauds. 

Id. 

4.  The  defendant,  a  national  bank, 
incorporated    under  act  of    con- 
gress of  June  3d,  1864,  advertised 
itself,  by  notices    placed    in    its 
banking  room  and  windows,  and 
in  other  ways,  as  a  United  States 
depositary,  and  financial  agent  of 
the  government,  for  the  exchange 
of  seven-thirty  government  notes 
into  five-twenty  bonds,  and  was 
such  agent  ana  engaged  in  such 
business.    Plaintiff,  a  stockholder 
of  the  bank,  placed  in  the  hands 
of  its  president  at  the  bank,   in 
banking  hours,  a  number  of  these 
notes  to  be   exchanged,  and  re- 
ceived from  him  a  receipt  therefor 
signed  by  him  individually,  and 
which  had  a  printed  caption  con- 
taining the  defendant's  name,  and 
the  name  of  the  cashier  and  presi- 
dent, and  a  statement  that  defend- 
ant was  such  depositary  and  agent. 
The  notes  were  sent  to  brokers  in 
New  York  with  a  letter  signed 
(officially)  by  the  cashier,  who  had 
also  been  present  at  the  time  the 
bonds  were  received,  upon  which 
was  a  copy  of  the  above  men- 
tioned printed  caption  of  the  bank, 
directing  the  brokers  to  sell  the 
notes  and  credit  the  proceeds  to 
the  bank,  which  they  did.    The 
proceeds  of  the  notes  were  credited 
to  the  president  individually  upon 
the  books  of  the  bank.   The  presi- 
dent's accouut  was  overdrawn  at 
the  time  of  the  credit  for  more 
than  the  amount.     Held,  that  the 
transaction  of    the    plaintiff  was 
with  the  bank  and  not  with  the 
president   individually,  and  that 
plaintiff  could  recover  the  amount 
of  the  proceeds  of  the  bonds  from 
the  bank,  after  demand  upon  it 
and  its  refusal  to  pay  the  same. 
Van  Leumn  v.  First  Nat.  Bank  of 
Kingston.  373 

5.  Held,  also,  that  the  entries  made 
by  the  agents  of  the  bank,  credit- 
ing the  proceeds  of  the  notes  to 
the  president,  could  not  prejudice 
the  rights  of  the  plaintiff  or  affect 
his  recovery.  Id. 

6.  It  seems  that,  even  assuming  that 
the  intention  of  the  plaintiff  and 


defendant's  president  was  that  the 
transaction  was  to  be  an  individual 
one,  and  not  with  the  bank,  and 
that  the  notes  were  sold  by  ^he 
president  to  the  bank,  the  bank 
would  still  be  liable  to  plaintiff  for 
the  proceeds  of  the  notes,  the 
knowledge  of  its  president  and 
cashier  being  in  law  its  know- 
ledge of  the  agreement  made,  and 
that  it  had  not  been  performed, 
and  it  not  being  therefore  a  bona 
fide  holder  of  the  notes,  nor  of 
their  proceeds.  Id. 

7.  A  selling  factor  is  bound,  when 
reasonably  requested,  to  make  and 
present  to  his  principal  a  full  and 
complete  statement  of  his  dealings 
and  the  accounts  between  them. 
TerwUliger  v.  Beuln.  403 

8.  Accordingly,  where  the  principal 
applied  to  his  factor,  to  whom  he 
had  entrusted  goods  for  sale  under 
an  agency  of  indefinite  duration, 
for  return  of  the  goods,  and  noti- 
fied him  of  a  termination  of  the 
agency,  and  the  factor  claiming 
a    lien    for   advances    and    com- 
missions   declined  to    surrender, 
and    upon   the    principal's    offer 
to  pay  the  amount  of  the  claims, 
substantially  refused  to  make  a 
statement  of  them, — Held,  that  the 
lien  was  forfeited,  and  the  princi- 
pal could  maintain  replevin  for 
the  goods.  v       Id. 

9.  Held,  also,  that  the  rules  in  rela- 
tion to  tender  as  between  debtor 
and  creditor  were  not  applicable. 

Id. 

10.  An  agent  sent  from  a  foreign 
country  with  goods,  in  quantities 
for  exhibition  and  sale,  who  pro- 
duces letters  from  his  principal  to 
a  correspondent  of  the  latter  at 
the  place  to  which  he  is  sent,  ask- 
ing assistance  and  advice  for  him 
in  the  prosecution  of  his  business, 
has  such  apparent    authority   io 
hire  suitable  premises  for  storage 
of  the  goods  as  will  justify  the 
correspondent    in    renting    such 
premises  to  him  for  the  purpose, 
on  the  principal's  account.  Tucker 
v.  Woolsey.  462 

11.  But  no  authority  can  be  implied 
from  these  facts,  which  will  au 


592 


INDEX. 


thorize  the  advancement  of  money 
by  the  correspondent  to  the  agent, 
on  account  of  the  principal,  even 
after  an  advance  made  by  him  for 
duties  on  the  goods  has  been 
approved.  Id. 

12.  An  agent,  acting  within  the  gen- 
eral scope  of  his  apparent  authori- 
ty, purchased  personal  property, 
for  which  he  gave  a  note  signed 
by  him  as  agent,  without  naming 
the  principal.    The  property  pur- 
chased was  received  by  the  princi- 
pal.   Held,  the  payee  having  taken 
the  note  bona  fide  that  it  bound 
the  principal,  notwithstanding  the 
agent's  instructions  prohibited  him 
from  giving  notes.    Httdcbrant  v. 
Crawford.  502 

13.  Held,  also,  that  the  receipt  of  the 
property,  for  which  the  note  was 
given,  rendered  the  principal  lia- 
ble for  its  value,  and  that  the  note 
was  at  least  evidence  of  such  value 
in  an  action  counting  on  the  in- 
debtedness, as  well  as  on  the  note. 

Id. 

Sse  ATTACHMENT,  4,  5. 
BROKER,  1  to  5. 
COMMON  CARRIER,  11, 13. 
CONTRACT,  5. 
CREDITOR'S  BILL,  2 
EVIDENCE,  2,  5,  6. 
INSURANCE,  18  to  22. 
LANDLORD  AND  TENANT,  4. 
MISTAKES  OP  LAW  AND  FACT,  3. 
STOCK  BROKER,  1  to  6. 
WITNESS,  8. 


PRINCIPAL  AND  SURETY. 

1.  Any  material  change  in  the  terms 
of  a  contract  upon  which  one  has 
become  liable  as  surety  releases 
such  surety.     Wilson  v.  Edwards. 

134 

2.  Accordingly,  7ield,  that  the  sure- 
ties for  faithful  performance  of  a 
contract  to  negotiate  and  make 
sales   of   goods   on    commission, 
account  for  sales  and  pay  over 
proceeds,  were  not  liable  for  pay- 
ment of  moneys  received  by  their 
principal  for  goods  consigned  to 
him  at  an  agreed  price.  Id. 

See  BOND,  1 , 2. 

COUNTY  TREASURER,  8, 6. 


PRIVATE  COMMUNICATIONS. 
See  NOTES  AND  BILLS,  5, 6, 7. 

PROBATE  OP  WILL. 

See  WILL,  1. 

PROFITS. 
See  DAMAGES,  1,  2. 

PROMISSORY  NOTES. 
See  NOTES  AND  BILLS. 

PUBLICATION   OF   SUMMONS 

See  PARTITION  OF  REAL  ESTATE.  4 
to  7. 

PUBLIC  OFFICER. 
See  COUNTY  TREASURER,  1  to  7. 

QUESTION  OF  FACT. 

See  CANAL  CONTRACTOR,  1. 
CREDITOR'S  BILL,  1, 2. 
DAMAGES,  5. 
NEGLIGENCE,  2. 
WITNESS,  2,  5,  6. 

QUIA  TIMET. 
See  EQUITABLE  ACTION,  1 

QUIET  ENJOYMENT. 
See  DEED,  5. 

RACEWAY. 

See  MILLS,  1,  2.  3. 

RAILROAD  COMPANY. 

See  DEED,  7, 8. 

NEGLIGENCE,  1  to  5. 


INDEX. 


593 


RAILROAD     MUNICIPAL 
BONDS. 

1.  Where  the  authority  of  the  de- 
fendants in  an  action  to  restrain 
the  issue  of  town  railroad  bonds, 
as  a  cloud  upon  title  to  real  estate, 
was  set  forth  by  an  allegation  that 
they  were,  or  claimed  to  be,  com- 
missioners for  the  issue  of    the 
bonds,  but  that  the  plaintiff  was 
ignorant  of  the  trutli  of  their  claim, 
— Held,  that  a  temporary  injunc- 
tion   was    erroneously    granted. 
Pierce  v.  Wright.  306 

2.  Where  the  statute  makes  affida- 
vits and    consents,  of  tax-payers 
acknowledged  and  filed  as  required 
evidence  of  the  facts  therein  con- 
tained, such    facts   may   not  be 
attacked  collaterally.  Id. 

3.  The  remedy,  in  case  of  inaccuracy 
of  the  affidavits  and  consents,  is 
by  proceeding  to  correct  the  re- 
cord or  set  it  aside.  Id. 

4.  The  provision  requiring  an  affida- 
vit of  consents  of  a  proportion  of 
persons,  &c. ,  upon  the  last  assess- 
ment roll  is  satisfied,  if  the  affidavit 
states  that  the  requisite  number 
of  consents  have  been  obtained 
according  to  the  rolls  of  the  last 
two  years,  consents  having  been 
obtained  in  both  years.  Id. 

5.  The  act  of  1871  (chap.  127)  was, 
it  seems,  designed  to  extend  the 
time  for  procuring  assents,  and  to 
enable  proceedings  already  begun 
to  be  completed.  Id. 


REAL  ESTATE  CONTRACT. 
See  REFORMATION  OF  CONTRACT,  1, 2. 

REAL  PROPERTY. 
See  DEED. 

RECEIPT. 

See  COMMON  CARRIER,  1,  4,  6. 
PRINCIPAL  AND  AGENT,  4. 

LANSING — VOL.  VI.  75 


RECEIVERS. 

In  the  absence  of  proof  as  to  the 
amount  of  labor  performed  by  a 
receiver,  the  reasonable  rate  of 
allowance  far  his  commissions  and 
expenses  is  according  to  the  rate 
fixed  by  the  statute  for  executors. 
Mulier  v.  Pondir.  472 

See  PLEADING,  3  to  6. 


RECONVEYANCE. 
See  EQUITABLE  ACTION,  2. 

RECORD. 

See  CRIMINAL  LAW,  1  to  4. 

RAILROAD  MUNICIPAL   BONDS, 
2r& 

REFEREE'S   DECISION. 

See  DAMAGES,  5. 
WITNESS,  5,  6. 


REFORMATION  OF  CON- 
TRACT. 

1.  Where,  on  contracting  to  convey 
a  piece  of  land,  the  vendor  intend- 
ed to  reserve  a  strip  of  a  certain 
width,  but,  through  inadvertence, 
signed  a  contract  with  reservation 
of  a  smaller  strip,  and  the  vendee 
knew  the  mistake,  did  not  inform 
the  vendor  of  it,  but  attempted  to 
obtain  the  benefit  of  it, — Held,  that 
the  act  of  the  vendee  was  fraudu- 
lent, and  the  contract  would  be 
reformed  on  the  ground  of  fraud. 
GiUettv.B&rden.  219 

2.  No  objection  or  demurrer  having 
been  made    before    trial   to    the 
statement  of  the  causes  of  action 
in  the  complaint,  a  refusal  to  com- 
pelthe  plaintiff  to  elect  then  upon 
which  he  will  proceed  is  properly 
refused.  Id. 


REGULARITY. 

PRACTICE,  2. 

PARTITION  OF  REAL  ESTATE,  7 
toll. 


594 


INDEX. 


RELIEF. 

Bee  ACTION. 

EQUITABLE  ACTION. 
EQUITABLE  RELIEF. 
TRUSTS  AND  TRUSTEES,  7  to  13. 


RELIGIOUS  CORPORATION. 

1.  A  mandamus  will  issue  to  compel 
the  trustees  of  a  church  corpora- 
tion incorporated  under  the  gene- 
ral law  to  restore  to  his  rights,  as 
a  corporator,  one  who  has  been 
expelled  from  the  church  member- 
ship, but  who  is  qualified,  as  a 
corporator,  under  the  statute.    The 
People  ex  rel.  Dilcher  v.  St.  Stephen's 
Church.  172 

2.  This  is  so,  although  the  by-laws 
of  the  church  preclude    all  but 
church  members  from  the  rights 
of  corporators.  Id. 

3.  A  by-law  presenting  any  different 
qualifications  for  membership  than 
such  as  are  required  by  the  statute 
is  void.  Id. 

4.  The  decision  in  this  case  at  Spe- 
cial   Term  (3  Lansing,  434),  re- 
versed. Id. 

REMAINDER. 

See  DEVISE,  1,  2,  3. 

TRUSTS  AND  TRUSTEES,  12. 


REMEDY. 

See  ACTION. 

ATTACHMENT,  7. 
BANKRUPT  LAWS,  4. 
RAILROAD  MUNICIPAL  BONDS,  3. 


REMOVAL  OF  CAUSES. 

1.  To  entitle  a  defendant  to  removal 
of  a  cause  into  the  United  States 
Circuit  Court,  under  the  act  of 
1789,  §  12  (1  Stat.,  79),  he  must 
show  the  plaintiff  a  citizen  of  an- 
other State  on  the  day  of  the  com- 
mencement of  the  action.  A  peti- 
tion for  removal  does  not  meet 
this  requirement  by  stating  that 
the  plaintiff  is  a  citizen  of  another 
State.  Pechner  v.  Phanix  Ins.  Co. 

411 


2.  Nor  is  it  sufficient  if  the  plaintiff 
appear  to  be  a  resident  in  the  State ; 
he  must  be  shown  a  citizen  as 
well.  Id. 


REPAIRS. 
See  CANAL  CONTRACTOR,  1. 

REPLEVIN. 
See  PRINCIPAL  AND  AGENT,  8. 

RES  AD  JUDICATA. 
See  BANKRUPT  LAW,  1,  2. 

RESCISSION  OF  CONTRACT. 

See  EVIDENCE,  2,  6. 

RESERVATION. 
See  DEED,  5,  6. 


RES 

See  EVIDENCE,  2. 

RESIDENCE. 

Where  it  appeared  that  the  plain- 
tiff and  her  husband,  residing  here, 
removed  into  New  Jersey,  where 
they  kept  house  for  a  year,  and 
then  were  without  permanent 
abode,  visiting  here  and  in  New 
Jersey,  until  after  commencement 
of  the  action,  when  they  resumed 
housekeeping  in  this  State,  and  it 
did  not  appear  with  what  inten- 
tion, as  to  residence,  they  removed 
from  the  State  or  returned  to  it,  — 
Held,  that  the  plaintiff  was  pre- 
sumptively a  resident  of  this  State. 
Liscomb  v.  New  Jersey  R.  It.  and 
Transportation  Company.  75 

See  DOMICILE. 

REMOVAL  OF  CAUSES,  1,  2. 


RETURN. 
See  CRIMINAL  LAW,  3. 

REVENUE  STAMPS. 

See  STAMPS. 


REVERSAL  OF  JUDGMENT. 

See  DAMAGES,  5. 
PRACTICE,  1. 
WITNESS,  3,  4,  6. 


ROCHESTER 
See  ASSESSMENTS,  7,  8,  9,  10,  11. 

BALE. 
See  ATTACHMENT,  6,  7,  8,  9. 

SALE  OF  CHATTELS. 

See  DAMAGES,  1,  2. 

WARRANTY  OF  CHATTELS,  1, 2, 3. 


SATISFACTION  OF  JUDG- 
MENT. 

See  BOND,  1. 


SAW  MILLS. 
See  MILLS,  1  to  6. 

SCHOOL  DISTRICT. 

See  ASSESSORS,  10. 

SENTENCE. 
See  CRIMINAL  LAW,  9. 


INDEX.  595 

SERVICE  BY  PUBLICATION. 


See  PARTITION  OF  REAL  ESTATE,  4 

to  7. 

SERVICES. 
EVIDENCE,  21. 

The  law  is  well  settled  that  a 
party  cannot  recover  for  services 
rendered  where  that  party  has 
lived  with  the  one,  from  whom  the 
compensation  is  claimed,  as  a  mem- 
ber of  his  family,  and  has  been 


brought  up,  provided  for  and  edu- 
cated as  such,  and  that  relation 
has  continued  during  all  the  time 
in  which  such  services  were  ren- 
dered. Shirley  v.  Bennett.  512 


SET-OFF. 
See  COUNTER-CLAIM. 

SHERIFF. 
See  EXECUTION,  1  to  5. 

SOLDIER. 

See  DOMICILE. 

SPECIAL   PROCEEDINGS. 

See  DOWER,  4,  5,  6. 
STAMPS. 

1 .  Where  a  revenue  stamp  is  omitted 
from  a  promissory  note  or  other 
written  instrument  at  the  time  it  is 
made,  by  mistake  and  without  in- 
tention to  evade  the  revenue  laws, 
the  instrument  is  not  by  reason  of 
such  omission  invalid  in  its  incep- 
tion.   Baker  v.  Baker.  509 

2.  In  order  to  invalidate  the  instru- 
ment, a  fraudulent  intent  must  be 
affirmatively  shown,  and  the  bur- 
den of  proof  of  such  intent  is  upon 
the  party  objecting  to  the  want  of 
a  stamp.         •  Id. 


596 


INDEX. 


STATE  COURTS.          ^ 
See  JURISDICTION,  1. 

STATE  LAWS. 
See  USURY,  1, 

STATUTES  CONSTRUED. 

See  ASSESSMENTS,  1,  7,  8,  9, 10. 

ATTACHMENT,  1  to  4. 

BANKRUPT  LAW,  1,  2. 

CRIMINAL  LAW,  1,  2,  4  to  9. 

DOWER. 

EXECUTORS  AND  ADMINISTRA- 
TORS, 4,  5. 

Lis  PENDENS,  1  to  5. 

RAILROAD  MUNICIPAL  BONDS, 
2  to  6. 

TENANTS  IN  COMMON,  1. 

WILLS,  1. 

WITNESS,  1,  2. 

STATUTE  OF  FRAUDS. 
See  PRINCIPAL  AND  AGENT,  2,  3. 

STATUTE  OF  LIMITATION. 

1.  A  foreign  statute  of  limitation  is 
not  a  bar  to  an  action  here.     Car- 
penter v.  Minturn,  56 

2.  Money  paid  by  one  of  two  persons 
jointly  indebted  on  contract,  at  the 
request  of  the  other,   stops    the 
running  of  the  statute  of  limita- 
tions as  to  both.    Pitts  v.  Hunt.  146 

8.  Where  one  of  the  debtors  sent  his 
check  to  the  creditor,  at  request  of 
his  co-debtor,  for  money  for  the 
latter  in  his  hands,  there  being  no 
other  debt  due  from  either, — Held, 
that  it  was  payment  by  both  within 
the  statute.  Id. 

4.  Also  that  the  creditor,  in  the 
absence  of  other  directions,  having 
applied  the  money  to  her  debt, 
that  evidence  of  an  understanding, 
unknown  to  the  creditor  for  its 
application  to  that  of  a  third  per- 
son, was  incompetent  to  show  its 
misapplication.  Id, 


See  DEED,  8. 

TRUSTS    AND   TRUSTEES, 

13,  14. 

WARRANTY  OP  CHATTELS, 
2,  3. 


STAY  OF  PROCEEDINGS. 
See  DOWER,  5. 

STEAMBOAT  COMPANY. 
See.  NEGLIGENCE,  5,  6. 

STOCK. 
See  BROKER,  1  to  5. 

STOCK-BROKER. 

1.  Stock-brokers    may    not    revoke 
their  general  agreement  to  buy, 
hold  and  sell  slocks  for  a  commis- 
sion and  interest  on     advances, 
without  notice.     White  v.  Smith. 

5 

2.  And  they  are  liable  for  damages 
sustained  by  their  employer    by 
reason  of  a  renunciation  of  the 
agreement.  Id. 

3.  Where  a  broker,  in  advance  of 
orders,    purchases    and    delivers 
stock  in  fulfillment  of  his  princi- 
pal's agreement  to  sell,  and  refuses 
to    purchase    and    deliver  subse- 
quently when  directed,  his  princi- 
pal's failure  to  attempt  a  purchase 
of  the  stock  through  others  is  no 
answer  to  his  claim  for  damages 

Id. 

4.  And  the  principal  may  rely,  it 
seems,    in    such  case,    implicitly 
upon  the  fidelity  of  the  broker.    Id. 

5.  The  damages  recoverable  are  the 
difference  between  the  price  paid 
upon  the  unauthorized  purchase 
and  market  value  of  the  stock  at 
the  time  of  refusal.  Id. 

See  BROKER. 


INDEX. 

STOCKHOLDERS. 
See  COMMON  CARRIER,  7. 


597 


STREAM. 
See  DEED,  2,  3,  4 

STREET  COMMISSIONERS. 
See  ASSESSMENTS,  5,  6. 

STREETS. 

See  ASSESSMENTS,  1  to  7,  10, 11. 

STRIKING  OUT  EVIDENCE. 
See  EVIDENCE,  22. 

SUBROGATION. 
See  EQUITABLE  ACTION,  2. 

SUMMONS. 

See  PARTITION  OF  REAL  ESTATE,  4 
to  7. 

SUPERVISORS. 
See  COUNTY  TREASURER,  4,  5,  6. 

SURETIES. 

See  BOND,  1,  2. 

COUNTY  TREASURER,  3. 

SURROGATE. 

Bee  EXECUTORS  AND  ADMINISTRA- 
TORS, 2  to  6. 
WILL,  1. 

TAX  ASSESSORS. 
See  ASSESSORS. 


TAX  COLLECTOR. 
See  TAXES. 

TAXES. 


The  owner  of  a  farm,  situated  in  two 
adjacent  towns,  having  been  as- 
sessed in  both  for  taxes  of  the 
same  year,  brought  an  action  to 
compel  the  respective  collectors, 
who  held  each  a  warrant  for  col- 
lection of  his  town's  tax,  to  compel 
them  to  interplead.  He  resided,  at 
the  time  of  the  assessment,  and  so 
alleged,  on  that  part  of  the  farm 
situated  in  one  of  the  towns. 
Held,  that  he  could  not  claim  to  be 
ignorant  of  the  rights  of  the  respec- 
tive collectors,  and  the  action  was 
not  maintainable.  Dorn  Y.  Fox. 

162 

See  ASSESSMENTS,  3. 
ASSESSORS,  8  to  12. 


TELEGRAM. 
See  NOTES  AND  BILLS,  6,  7. 

TENANT  AT  WILL. 
See  LANDLORD  AND  TENANT,  1,  2. 

TENANT  BY  SUFFERANCE. 

See  LANDLORD  AND  TENANT,  1,  2. 
i 

TENANT. 
See  LANDLORD  AND  TENANT. 

TENANTS  IN  COMMON. 

In  an  action,  brought  pursuant  to 
chapter  428  of  Laws  of  1855,  to 
recover  the  value  of  property 
owned  by  the  plaintiffs  as  tenants 
in  common,  which  had  been  de- 
stroyed by  a  mob,  it  appearing  that 
certain  of  the  plaintiffs  had  been 
notified,  several  days  before  the 
assembling  of  the  mob  and  occur- 


598 


INDEX. 


rence  of  the  injury,  of  threats  and 
attempts  to  be  made  to  destroy 
the  property  by  a  mob,  and  that 
notice  had"  been  given  by  the 
plaintiffs  so  notified  to  the  sheriff 
of  the  county,  and  that  others  of 
the  plaintiffs  had  received  no  ac- 
tual notice,  and  hau  no  personal 
knowledge  of  the  threatened  de- 
struction of  the  property, — Held, 
that  a  charge  to  the  jury  to  the 
effect  that  such  of  the  plaintiffs  as 
had  been  thus  notified  were  not 
entitled  to  recover,  for  the 
reason  that  they  had  failed  to 
notify  the  sheriff  of  the  county 
in  regard  to  the  threats,  but  that 
such  of  them  as  had  not  been  no- 
tified and  had  no  personal  know- 
ledge of  the  threats  were  entitled 
to  recover,  and  that  notice  to 
their  co-plaintiffs  and  co-tenants 
was  not,  in  law,  notice  to  them, 
was  correct.  Loomis  v.  Supervisors 
of  Otieida  Co.  269 

See  DOWER,  1,  2. 


TENDER. 

See  BROKER,  1. 

PRINCIPAL  AND  AGENT,  9. 


TESTIMONY  OF  CRIMINAL. 
See  WITNESS,  1,  2. 

TESTIMONY  OF  EXPERTS. 
See  EVIDENCE,  3. 

TESTIMONY  OF  FELON. 
See  WITNESS,  1,  2. 


TITLE  TO  PERSONAL  PRO- 
PERTY. 

See  ASSIGNMENT,  1,  2. 


TITLE  TO  REAL  ESTATE. 

See  EQUITABLE  ACTION,-!. 

PARTITION  OP  REAL  ESTATE. 
LIB  PENDENS,  3,  4. 


TORT. 

See  JURISDICTION,  1. 
PRACTICE,  1. 


TOWN  COMMISSIONERS. 
See  RAILROAD  MUNICIPAL  BONDS,  1. 

TOWN  RAILROAD  BONDS. 
See  RAILROAD  MUNICIPAL  BONDS. 

TOWNS. 

See  TAXES. 

TRADE-MARK. 

The  street  number  of  a  building  can- 
no*  become  part  of  a  trade-mark 
unless  made  use  of,  therefor,  by 
one  who  has  the  exclusive  use  of 
the  only  building  designated  by 
such  a  number  on  the  street.  Glen 
&  Hall  Manufacturing  Co.  v.  HaU. 

158 

See  COUNTER-CLAIM,  1. 

TRANSFER. 
See  ASSIGNMENT,  1,  2. 

TREES. 
See  WARRANTY  OP  CHATTELS,  1, 2, 3. 

TRESPASS. 

See  DEED,  7, 8. 
LINE  FENCES,  1. 
MILLS,  5. 

TRIAL. 

See  EVIDENCE,  22. 

REFORMATION  OF  CONTRACT,  2. 

TROVER. 
See  BROKER,  1. 


INDEX. 


599 


TRUSTS  AND  TRUSTEES. 

1.  The  defendant  took  a  deed  of 
building  lots,  which  were  under 
contract  of  sale,  and  agreed  with 
his  grantor  to  make  advances  for 
building  purposes  to  the  purchas- 
er, and  in  due  time  convey  to  him 
and  receive  back  mortgages,  and, 
after  deducting  his  advances  and 
certain  other  sums  and  claims  from 
the  price  under  the  contract,  pay 
the  surplus  to  the  grantors  by  the 
second  mortgages  of  the  purchaser. 
Held,  that  he  was  a  trustee  sub  modo 
for  the  grantor,  and  was  bound  to 
convey  the  subject  of  the  trust  to 
her  on  payment  of  the  amount  due 
him,  with  expenses  of  manage- 
ment and  interest ;  and,  until  dis- 
charged from  the  trust,  to  hold, 
manage  and  preserve  the  property 
for  the  grantor.  Terrett  v.  Crom- 
bie.  82 

2.  Held,  also,  that  he  could  not  di- 
vest himself  of  the  character  of 
trustee  by  becoming  the  purchaser 
of  the  p'roperty  upon  foreclosure 
sales  in  actions  brought  by  himself 
upon  the  second   mortgages,   no 
settlement  having  been  made  with 
the  grantor,  and  she  not  having 
been  party  to  the  action.     And 
that  this  was  so,  notwithstanding 
the  legitimate  claims  of  the  de- 
fendant under  the  agreement  ex- 
ceeded the  amount  secured  by  the 
mortgages,  and  the  remaining  pay- 
ments and  securities  had  been  ex- 
hausted by  his  payments  in  ac- 
cordance with  the  agreement.    Id. 

3.  And  quere  whether  the  fact  would 
have  been  otherwise  if  the  grantor 
had  been  party  to  the  foreclosure 
actions.  Id. 

4.  Nor  was  the  defendant  discharged 
from  the  trust  by  the  grantor's  re- 
fusal, upon  request,  to  retake  the 
property  and  pay  him  his  advan- 
ces and  claims.  Id. 

5.  Nor  by  his  paying  to  the  grantor 
a  greater  amount  than  that  of  the 
mortgages.  Id. 

6.  Held,  further,  that  the  wife  of  the 
defendant  had  no  claim  to  dower 
in  the  property,  superior  to  the 


grantor's  right  to  redeem,  on  pay- 
ment of  the  advances,  &c.        Id. 

7.  The  cestuis  que  trust  are  vested 
with  an  absolute  title  to  funds  set 
apart  from  the  assets  of  an  estate 
as  trust  funds,  and  may  maintain 
ao  action  for  their  mismanagement 
and  loss.     Sortore  v.  Scott.         271 

8.  It  seems  a  plaintiff  may  make  a 
case  entitling  him  to  part  of  the 
relief  which  he  demands,  and  be 
refused  other  relief  for  failure  to 
join  with  himself  other  necessary 
parties.  Id. 

9.  It  seems  that  the  rule  which  de- 
nies a  right  of  action  against  the 
representatives  of  a  deceased  joint 
debtor  and  the  survivor,  until  the 
remedy  is  exhausted  against  the 
latter,  unless  he  is  insolvent,  does 
not  apply  to  the  case  of  breach  of 
trust  by  trustees.  Id. 

10.  But  that  the  representatives  of  a 
deceased  trustee  are  properly  join- 
ed with  the  surviving  trustee  in  an 
action  for  breach  of  trust  happen- 
ing during  the  deceased  trustee's 
life.  Id. 

11.  But  a  plaintiff  cannot  unite  a 
right  of  action  for  breach  of  trust 
against  a  surviving  trustee,  and  the 
representative  of  his  deceased  co- 
trustee,  with  a  claim  for  interest 
of  trust  funds,  recoverable  against 
the  surviving  executor  of  the  estate 
from  which  the  trust  funds  have 
been  set  apart,  in  an  action  at  law. 

Id. 

12.  Nor  can  the  cestui  que  trust,  en- 
titled to  interest  of  the  trust  fund 
during  life,  have  an  action  to  com- 
pel the  trustees  to  give  security  for 
moneys  lost  by  their  breach  of 
trust,  and  an  accounting,   or  to 
recover  the  moneys  lost,  without 
joining  those  owning  the  remain- 
der. Id. 

13.  No  right  of  action  vests  in  one 
named  as  executor  in  a  will,  and 
to  whom  is  given  as  executor  a 
trust  under  the  will,  but  who  re- 
nounces the  executorship  and  re- 
fuses to  assume  or  take  upon  him- 
self the  trust,  to  recover  money 
belonging  to  the  trust.    In  such 


GOO 


INDEX. 


Case,  the  trust  remains  vested  in 
the  Supreme  Court  until  the  ap- 
pointment by  it  of  a  trustee  under 
the  will,  and  the  statute  of  limita- 
tions runs  against  a  claim  for  such 
moneys  from  the  time  of  the  ap- 
pointment and  qualification  of 
such  trustee.  Dunning  v.  Ocean 
Nat.  Bank  of  the  city  ofN.  T.  296 

14.  Nor  does  an  administrator  with 
the  will  annexed,  appointed  under 
the  will,  become  such  trustee,  or 
have  any  right  of  action  for  such 
moneys.  Id. 

See  EQUITABLE  ACTION,  2. 
PARTITION,  12. 
PLEADING,  3  to  6. 


TRUSTEES    OF   SCHOOL  DIS- 
TRICT. 

See  ASSESSORS,  10. 


UNDERTAKING   ON  APPEAL. 
See  BOND,  1,  2,  3. 


UNITED    STATES   CONSTITU- 
TION. 

See  CONSTITUTION  CONSTRUED,  2. 
JURISDICTION. 


UNITED  STATES  COURTS. 

See  JURISDICTION. 

REMOVAL  OF  CAUSES,  1,  2. 


UNITED       STATES      DEPOSI- 
TORY. 

See  PRINCIPAL  AND  AGENT,  4. 


USURY. 


Where  the  maker  and  indorser  of  a 
note  reside  in  New  York,  where 
it  is  drawn,  dated  and  payable, 
the  note  is  not  usurious  because 
discounted  in  New  Jersey  for  more 
than  the  legal  rate  of  interest  in 
New  Jersey.  The  statute  of  New 
Jersey,  limiting  the  rate  of  in- 


terest to  six  per  cent,  does  not 
apply.    Hackettslown  Bank  v.  Rea. 

455 


VENDOR  AND  VENDEE. 

See  DEED. 

MISTAKES  OF  LAW  AND  FACT, 

1,2. 
REFORMATION  OF  CONTRACT, 

1,2. 
SALE  OF  CHATTELS. 


VENUE. 
See  ASSESSMENT  ROLL. 

VESTED    REMAINDER. 
See  DEVISE,  1,  2,  3. 

VOID  INSTRUMENT. 

See  STAMPS. 

WAGES. 

See  SERVICES. 
WITNESS,  9. 

WAIVER. 

See  EVIDENCE,  1. 
EXECUTION,  1,  3. 
INSURANCE,  18,  19,  20. 
NUISANCE,  1. 

WAREHOUSEMEN. 
See  COMMON  CARRIER,  8,  9. 

WARRANT. 

See  JUSTICE  OF  THE  PEACE,  1  to  5. 

WARRANT  OF  ATTACHMENT 
See  ATTACHMENT,  4,  5. 


601 


WARRANTY  OF  CHATTELS. 

1.  Inability  to  ascertain  the  quality 
or  condition  of  property  warranted 
to  be,  at  the  time  of  sale,  of  a  par- 
ticular quality  or  in  a  certaiixcon- 
dition,  does  not  change  the  rule 
as  to  the  time  when  a  right  of  ac- 
tion for  breach  of  the  warranty 
accrues.    AUen  v.  Todd.  222 

2.  A  nurseryman  selling  trees,  for  a 
certain  kind  of  fruit  trees,  to  one 
who  relies  on  his  representations, 
warrants  them  of  the  kind  repre- 
sented ;  an  action  on  the  warranty 
accrues  immediately  if  the  trees 
are  of  a  different  kind.  Id. 

8.  Otherwise  if  the  representations 
are  that  the  trees  will  bear  certain 
kind  of  fruit,  in  which  case  the 
right  of  action  arises  when  the 
fruit  produced  by  the  trees  proves 
different  from  the  warranty. 


WATER-COURSES. 
See  MILLS,  1,  2,  3. 

WILLS. 

The  provisions  of  the  Revised 
Statutes  (§  30,  2  R.  8.,  61),  under 
which  the  next  of  kin  may  con- 
test the  probate  of  wills  of  per- 
sonal property,  are  inapplicable  to 
wills  which  dispose  of  both  real 
and  personal  property;  they  re- 
late to  wills,  exclusively,  of  per- 
sonal estate.  Matter  of  will  of  John 
Kettum.  1 

See  DEVISE,  1,  2,  3. 

EQUITABLE  ACTION,  1. 
TRUSTS  AND  TBUSTEES,  13, 14. 


WITNESS. 

1.  One  who  is  charged  with  a  crimi- 
nal offence  may  testify  as  a  wit- 
ness in  his  own  behalf,  under  the 
statute  of  1869  (chap.  678),  although 
it  appears  that  he  has  served  out  a 
term  in  the  State  prison.  The  law 
intended  to  allow  a  prisoner  the 
benefit  and  privilege  of  stating  to 

LANSING — VOL.  VI.  76 


the  jury  any  matter  which  was 
calculated  to  explain  the  charge 
against  him,  and  this  privilege  was 
to  be  enjoyed  irrespective  of  any 
matter  which  could  disqualify  a 
witness  under  ordinary  circum- 
stances. The  degree  of  credit  to 
which  he  is  entitled  is  a  question 
for  the  jury.  Newman  v.  The  Peo- 
ple. 460 

2.  Delamaterv.  The  People  (5  Lansing, 
332),  approved  and  followed.     Id. 

3.  The  rule  is  well  established  that 
it  is  not  competent  to  impeach  a 
witness  by  contradicting  him  as  to 
facts  disconnected  with  and  col- 
lateral to    the  subject-matter  at 
issue  and  on  trial.    Roze/izweig  v. 
People.  462 

4.  Accordingly,  where  a  prisoner  on 
trial  for  an  abortion  upon  A.  B., 
testified,  as  a  witness  upon  his 
own  behalf,  that  he  did  not  know 
N.  W.,  a  witness  then  present  and 
pointed  out  to  him,  had  never  seen 
her,  and  had  never  procured  an 
abortion  upon  her,  and  afterward 
N.  W.  was  called  as  a  witness, 
and,  under  objection,  testified  that 
the  prisoner  had  procured  an  abor- 
tion upon  her, — Held,  that  the  ad- 
mission   of    this    testimony    was 
error,  for  which    the   judgment 
should  be  reversed.  Id. 

5.  The  referee  or  jury  are  best  quali- 
fied to  decide  whether  inconsisten- 
cies in  testimony  arise  from  willful 
prevarication  or  unintentional  mis- 
take, or  defect  in  memory.   Hinde 
v.  Smith.  464 

6.  Where  the  testimony  of  a  witness 
showed  discrepancies  in  fixing  a 
date,  placing  it  once  at  a  time  in- 
consistent with  other  established 
facts,  also  denials  upon  cross-ex- 
amination of  his  statements  upon 
the  examination  in  chief,  and  was 
contradicted  by  the  defendant  as  a 
witness  on  his  own  behalf, — Held, 
that  the  decision  of  the  referee 
upon  the  credibility  of  the  wit- 
nesses would  not  be  disturbed  on 
appeal  Id. 

7.  The  prohibition  of  section  399  of 
the  Code  does  not  prevent  a  party 
from  testifying,  in  an  action  in 


602 


INDEX. 


•which  the  legal  representatives  of 
a  deceased  person  are  adverse 
parties,  to  a  conversation  between 
the  deceased  and  a  third  person, 
also  deceased,  which  was  over- 
heard by  the  witness.  Httdebrant 
v.  Crawford.  502 

8.  Nor  is  a  party  prohibited  by  that 
section  from  testifying  to  a  trans- 
action between  himself  and  the 
agent  of  deceased,  previous  to  the 
time  of  his  death.  Id. 

9.  A  father  who  has  surrendered  to 
a  minor  child  her  wages  in  ad- 
vance of  their  being  earned,  is  a 
competent  witness  (under  section 
399  of  the  Code)  in  a  suit  brought 
by  the  child  to  recover  such  wages 


against  the  administrator  of  her 
employer  to  prove  conversations 
and  transactions  had  by  him  with 
the  deceased  in  relation  to  such 
employment,  he  having  never 
been  entitled  to  receive  any  of  the 
wages,  and  the  child  having,  there- 
fore, not  derived  her  title  to  them 
through  him.  Shirley  v.  Benrt&lt. 

512 

See  EVIDENCE,  9, 14,  19  to  22. 


WRIT  OF  ERROR. 
See  CKIMINAL  LAW,  3. 


- 


